Case facts
Our client and his ex-wife were married for seven years and had one child who was 8 at the time of this allegation.
He has been divorced for almost two years, and as a result, a Family Law Court order was put in place regarding the shared custody of their son. The order stated that our Client is to have custody of the child each alternate Saturday and is also to undertake drug testing when requested by the ex-wife’s solicitor. The condition of the drug test in the Court Order states that the ex-wife’s solicitors must send the request of the drug test to our client by mail, email and SMS.
One Saturday morning, our client, his ex-wife and her mother attended their son’s rugby match and presentation. Our client had made the arrangement with his ex-wife, during a phone conversation the night before, that he was to pick his son up from that location.
He arrived at the game to watch his son play rugby and kept his distance from the ex-wife and her mother. Later he was approached by the ex-wife and was told that she needed to speak with him.
After the match ended, the ex-wife approached our client again and told him that he could not take custody of his son that weekend because a drug test request was send out by the her solicitor which our client had allegedly failed to complete and therefore had not complied with the order.
It was later established that the ex-wife’s solicitors had made an error in only sending the request for the drug test to our client via mail, which he had not received at that time, and failed to send the request by SMS and email, as required by the Family Court Order. Our Client had no knowledge of the request for a drug test as the correct means of communication were not properly executed, and the ex-wife was under the impression that the request was sent out properly by her solicitors and that our client had intentionally not complied with them.
The client then began to explain to his son the reason as to why he could not take custody of him that weekend and consequently the child became very upset. The ex-wife was disturbed that our client had told their son the real reason why he could not go home with his father that day and as a result a verbal argument developed between the two parties. It was alleged that our client became angry and said to the ex-wife “I will slap you” and “You need a good slap”, when she replied “yeah you would you wife beater”.
Our Client admit saying “You need a good slap” in his Affidavit, however denied any other abusive phrases that the ex-wife alleged he had said. The ex-wife then walked away due to her being ‘embarrassed’ by the situation.
At the time the son was crying profusely whilst hugging and refusing to let go of his father. Our client returned his son to the ex-wife and left the scene only to return a short time later where he saw his son crying, kicking and screaming on the ground as he was being held by his ex-wife’s mother. When he intervened, the police were called.
Police attended and spoke to the parties involved. Later that day the ex-wife and her mother attended the police station and made statements in which the ex-wife claimed that she held fears for her safety that our client would assault her and as a result an AVO was applied for by police.
Legal issue
Section 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) states that:
“A court may make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:
(a) The commission by the other person of a personal violence offence against the person, or
(b) The engagement of the other person in conduct which the other person;
(i) intimidates the person or a person with whom the person has a domestic relationship, or;
(ii) talks to the person
Question of fact
Did the ex-wife have reasonable grounds to fear and in fact feared our client?
Defended hearing
The matter proceeded to hearing. Four witnesses were called in the prosecution case and all of them cross examined by our solicitor – a criminal defence lawyer from Nyman Gibson Miralis’s Parramatta office.
The following issues came to light:
1) Both Parties, from the date of the Incident until present, still maintained a cordial relationship whilst in contact and have been in physical contact on several occasions during the custody exchange of their son.
2) The ex-wife’s oral evidence contradicted her statement to police. She claimed during cross examination that our client physically assaulted her on the day the incident occurred by swinging and flinging her 3 metres into the air where she fell onto the ground. Nothing of this nature was mentioned to the police or was mentioned in her written statement to the police.
3) The ex-wife’s mother’s evidence confirmed that there was no physical assault by our client to the ex-wife. The conflicting evidence resulting in a finding by the local court magistrate that the ex-wife’s evidence was to be regarded as unreliable.
4) There was no evidence, by any of the witnesses, that there had been any history of domestic violence by our client in the past.
5) The words “you need a good slap” did not amount to an assault nor did they necessarily cause the ex-wife to fear, noting the response that she gave at the time.
Case result
The Magistrate held that although the ex-wife may have held fears for her safety during the alleged incident, there was no evidence to support on the balance of probabilities and on reasonable grounds that the she still in fact feared our client. Due to the circumstances of the case and nature of the evidence, it was held that these fears were not based on reasonable grounds and that conduct would not be sufficient to warrant making the order for the AVO. The application for the AVO was dismissed.
How can Nyman Gibson Miralis help you?
This case is an example of how easy it is for complaints to be made which can lead to an AVO being made against the accused. Whilst the making of an AVO is not a criminal charge or conviction, they can have longstanding effects on an individual, as well as potentially giving rise to an alleged breach of the apprehended violence order leading to a criminal charge.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
