EJU v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-07-22

Introduction

In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as EJU. The names of others are also anonymised where their identification might reveal the identity of the Applicant.
The publication or broadcast of the name of the Applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Background

EJU has sought review of a decision by the Commissioner of Police ("the Respondent") to revoke his Category H firearms licence. EJU held the licence under the Firearms Act 1996 ("the Act") for the genuine reason of sport target shooting. The decision to revoke the licence was taken on the basis that it is not in the public interest for EJU to continue to hold the licence. The Respondent formed this view after consideration of a long history of domestic disputes and allegations between EJU and family members. This history is discussed in detail below.
The decision to revoke EJU's licence was affirmed on internal review. He has now sought external review in the Tribunal.

Applicable Law

Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and .... (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.…
Section 24 of the Act relevantly provides: 24 Revocation of licence ... (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. …
Clause 20 of the Firearms Regulation 2017 provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Material before the Tribunal

The Applicant relies on his own evidence. Both parties provided detailed written submissions and made oral submissions. There is a significant amount of historical material before the Tribunal that relates to the domestic disputes involving the Applicant and his former wife and her family. The Commissioner contends that various "stressors" in the Applicant's life may have the effect that the Applicant may engage in conduct that against the public interest.

Domestic Disputes

As noted above, there is a long history of domestic disputes involving the Applicant and his former wife. These issues have been the subject of numerous legal matters. The Family Court proceedings are reported as Grainger & Grainger. It is useful to consider the background to the domestic disputes to the extent that the stressors that the Commissioner has identified are related to those disputes.
In a 2015 decision, the Family Court provided the following background information: BACKGROUND FACTS The father The father was born in Victoria in 1971 and is therefore presently 43 years of age. He grew up in what has been described by him as "a conservative family". He was an only child. He completed schooling to year twelve. He moved out of home at 17 years of age and got "into a lifestyle of sex, drugs and rock and roll." Thereafter he had a range of employment until leaving Victoria when aged 28, to live in Darwin where he stayed for three years. It appears as though he purchased property at Village X in 2003 and moved to live there. At about that time, his parents retired to Northern New South Wales. The father took up some form of employment in communications, and he was in that employment and living at Village X when he met the mother in 2005. He was then aged 34. The mother The mother was born in the United Kingdom in 1984, and is therefore presently 31 years of age. Her parents separated when she was 12 years old, but apparently remained good friends, even to the extent that the combined family still went on outings together. After her parents' separation, initially the mother remained living with her father, although unusually her mother split her time between her new partner and the maternal grandfather's household. Ultimately the mother and maternal grandmother moved to a different area where they lived until the mother was in her late teens. It appears as though the maternal grandfather also moved there and lived nearby. The mother was sexually assaulted by another student from her high school when she was 14 years old. She apparently also had some issues with bullying at school, and in consequence for a time she was home-schooled. After leaving school at 16 years of age she studied alternative medical therapies. At some stage in her late teens she was sexually assaulted whilst on a date. At the conclusion of her studies she spent two years travelling internationally. Initially she then moved back to the United Kingdom, but ultimately moved to Australia in 2005, where she met the father at Village X and shortly afterwards commenced a relationship with him. She was then aged 21. The maternal grandmother On any view, the maternal grandmother is an important figure in this litigation. As at January 2015, she was 55 years of age. She was born in the United Kingdom. She is a qualified allied health professional. I have to an extent traversed some aspects of her life in discussing the mother's background. However after separating from the maternal grandfather, the maternal grandmother stabbed a man with a chisel. The circumstances behind it are complex, but apparently the maternal grandmother's then partner intervened in a stranger's domestic violence incident and later the maternal grandfather became involved as well. The maternal grandmother believed that the maternal grandfather was going to be killed, so she stabbed the victim. She was charged with attempted murder, but ultimately pleaded guilty to unlawful wounding. She was not jailed. The maternal grandmother permanently moved to Australia in June 2004, and purchased land at Village X in 2005. Shortly after she moved there she met the father and they became friends. According to the maternal grandmother, at about that time she also met the paternal grandmother and got on well with her. The relationship After her initial experience of Village X in 2005, the mother determined to permanently move to Australia and hence returned to the UK to pack up her belongings. She came back to Australia in early 2006. She shortly thereafter moved in to live with the father and the parties married later in 2006. Although the father and mother describe themselves as "persons who would not normally marry" at the time the mother was only on some species of bridging visa, and the fact of the marriage enabled her able to stay in Australia permanently. At about this time the maternal grandmother left Village X, but remained the owner of two properties there. She returned to visit the mother and father at Village X on occasion. Otherwise the lives of the parties appear to have been unremarkable, with the next major event being when the mother became pregnant in 2008 with the child. That is not to say that the parties' lives were conventional. It appears as though both were heavy users of marijuana. The father was a fairly heavy drinker as well. He also extensively and regularly accessed pornographic material. The mother would apparently engage in public nudity within the Village X community. Also it appears as though money was tight, and that led the mother to undertake some nude photography and videography, which was posted on the internet and available for viewing by members of the public for a fee. The father was agreeable to this. During that time the father sought appointment as a public official. The labour which led to the birth of the child was long and painful. During the course of the labour, the father went out and had a haircut. This was a topic of some questioning in cross-examination and was said to display a lack of support of the mother by the father. The father explained it on the basis that a friend had offered to cut his hair - which apparently needed to be cut - and he accepted. The maternal grandmother stayed with the parties from about a week prior to the birth. She then continued to stay after the birth for some period of time. The paternal grandparents also attended at the parties' home to assist in early stages of the parents dealing with the newborn child. In about March 2010 the maternal grandmother returned to live at Village X. Then in June 2010 she, the mother, father and the child, all left to travel to Europe. The plan was that the mother, child and maternal grandmother would stay in the United Kingdom, whereas the father would spend some time there, but spend three weeks in mainland Europe. The maternal grandmother recalls that the father was hostile towards her during their flight to the UK. Particularly he refused to assist her during some anxiety and then "threw quite a tantrum" when they landed in the UK. Things did not thereafter improve, however the next day the father travelled to Europe for three weeks. Upon his return the maternal grandmother recalls him as being "rude and grumpy" most of the time. It culminated in an argument between the maternal grandmother and father (albeit apparently also involving the mother) at the conclusion of which the father "stormed out" and thereafter did not travel on with the mother and maternal grandmother. Shortly after he announced his intention to return to Australia, and did so, with the mother and maternal grandmother and the child all remaining in the UK. The parties have not cohabited since. Both appear to accept that when the father returned to Australia from the UK, the parties had by then separated, and it proved to be permanent. Post-separation events The child celebrated her first birthday in the UK, whilst the father was in Australia. The father began to be concerned that the mother would not return. Communication between them at the time was poor. The father consulted solicitors. They corresponded with the mother. Ultimately the mother, child and maternal grandmother returned to Australia in October 2010, at which time the mother told the father that the marriage was over. Communication between the parties did not improve. Worse, the father had been sharing his concerns about the mother and maternal grandmother to other Village X residents. Some had harsh words to say to the mother, even when she was in the UK. Once such person, Ms K, was a witness in this proceeding and her email exchanges with the mother were in evidence. Then the mother and maternal grandmother travelled with the child to Sydney without the father's agreement. He began to be concerned that they would take the child out of the country. On 14 December 2010 he commenced these proceedings. In them he sought interim orders for "joint custody of the child" and an order restraining the child from leaving Australia without his consent first obtained. At around that time, the maternal grandfather also travelled to Australia. Together with the mother and maternal grandmother, on 29 December 2010, he accessed the father's home and removed all of the mother's, and most of the child's, belongings. They also took some items which the father asserted were his. The father was absent at the time. The maternal grandfather left two letters addressed to the father on the kitchen table. One of them expressed concern that the father's "washing dirty linen in public was very damaging" and said "we are at a difficult position now and at the moment I can see no way out" and that "we are now unfortunately in the hands of solicitors." Further unpleasantness ensued when the maternal grandmother demanded that the father give up the mattress he was sleeping on. The father refused, but the mother, maternal grandmother and maternal grandfather (together with the child) then again attended his house and sought to obtain entry. However since 29 December, the father had changed the locks, and they could not get in. In the course of their visit, the maternal grandmother called out to the father that "I think we need to talk about this before it goes too far." It is unnecessary to traverse the subsequent history of this litigation. However it will be important to carefully recite and consider the various behaviours and alleged disclosures of the child thereafter, and particularly her very worrying behaviour when faced with the prospect of, from time to time, spending time with the father. Between the return of the mother and child to Australia in October 2010 until July 2011, there was a degree of co-operative parenting of the child. However the mother began to become concerned with the quality of care which the father afforded the child when she spent time with him, and was particularly concerned in relation to nappy rash and red genitalia which she observed the child to have when she came home from spending time with the father. From about July 2011 she also began to become concerned about the child engaging in "humping" behaviour with her stuffed toys. Then in January 2012, the mother sought medical assistance about the child, and the doctor she then consulted, made a notification to the Department of Family and Community Services ("DoCS"). She did that because she believed that the child had made disclosures that she was being sexually abused by the father. I will discuss the detail of that in due course, however it is pertinent to note that ultimately all notifications to the DoCS or New South Wales Police, no matter by whom they have been made, have been found to be unsubstantiated. At about the same time, and perhaps not unrelated to the mother's allegations, the father made some public comments, both on a community notice board at Village X and on the internet, which the mother and maternal grandmother found offensive and confronting. There were also one or more occasions when the mother and maternal grandmother thought that the father, when he was driving by or stopped outside of the home, was stalking them. That led the mother and maternal grandmother to seek assistance and they left Village X and were placed at a women's refuge in Town E, and later in Town Y. They obtained domestic violence orders against the father, albeit they were ultimately overturned on appeal. Shortly after arriving in Town Y the mother moved into self-contained accommodation, but the maternal grandmother moved to Town H. Orders were made on 24 April 2012 that the father commence spending supervised time with the child at the E Contact Centre. I will detail that history of that contact later. Ultimately the father consented, during the first stage of the trial before me, for the mother to relocate to Town H as well, with contact to thereafter move to the H Contact Centre. For reasons which I will later explore, the child began to display increasing stress at the prospect of spending supervised time with her father, or even communicating with him by telephone. As I shall soon detail, although some Contact Centre visits commenced with the child distressed, but proceeded eventually after she calmed down, some had to be wholly abandoned. The most recent attempt at the father spending any time with the child - in the course of the preparation of Ms M's Family Report - had to be abandoned owning to the level of distress and concerning behaviours of the child. The father has now not successfully spent time with the child since April 2014. Attempts at telephone communication ceased in September 2014. It appears as though the child has had nothing to do with her paternal grandparents for a much longer period. As at the date of the trial before me in 2015, the mother, maternal grandmother and child lived in Town H, and the father lived in accommodation in Town E itself. Neither party are in employment, nor are either party presently in a relationship. The father is not paying any child support in respect of the child, and has not done so for some years.

Outcome of the Family Court proceedings

The Family Court proceedings continued for several years. Final Orders regarding custody and access were made in 2019. An appeal from those orders was dismissed. The Court ordered that the child live with the mother, who would have sole parental responsibility for the child, and deliberately made no orders at all to either prescribe or prohibit the child's future face-to-face contact with the father. Court ordered that the Applicant is permitted to send to the child a card and/or gift for the child's birthday, Christmas or other significant milestone in the child's life.
There is no suggestion that the Family Court's orders were intended to be viewed as a punishment of the father. In 2015 Justice Tree made relevant findings of fact: 326 I am satisfied that the mother, and particularly the maternal grandmother, have in the past sabotaged the supervised time which the father has spent with the child, or at least was intended to spend with the child. The examples of the maternal grandmother's behaviour in 2013 could be construed no other way. She was attempting to cause the then imminent time with the father to fail. 327 That behaviour must stop. Whilst the mother will have great difficulty in accepting that I have rejected her argument that the father presents an unacceptable risk of sexual harm to the child, she will need to. This child cannot grow up with the belief that her father sexually abused her, or presents an unacceptable risk of sexual harm to her. The evidence simply does not reasonably support such a conclusion.
In reaching its 2019 conclusion the Court stated: Some critical contextual findings 44. The discussion which follows of the competing proposals within the matrix of the primary and additional considerations prescribe by the Act, should also be seen within the following specific findings on the evidence: a) Tree J found at paragraph 275 of his Reasons that: There is a high risk that the mother will continue to seek to wholly deprive the child of any relationship whatsoever with her father or paternal grandparents. I find that the mother, because of a combination of factors such as her innate anxious personality; the influence of her mother; her retained belief that the father presents as risk to the child and a ready acceptance that the child's words and opposition to spending time with the father, all make the father unable to genuinely support the child having a relationship with the father. Whilst intensive therapy for the mother may have assisted, it has not been undertaken by the mother consistently with a desired aim to facilitate and support the child spending time with the father. I have no confidence at all that the mother has the required insight into the effect of her behaviour. b) I accept that the mother did suffer a severe illness requiring urgent surgery in early 2016. The untested medical evidence before the Court supports a finding, which I make, that the mother needs monitoring. However, I am not satisfied that her current condition (so far as the diagnosis is concerned) requires her to live as close to the D Hospital as she asserts. In my view the mother could live in Northern New South Wales and travel to Sydney as required; c) Overall, the evidence does not support that the child would find it difficult to maintain schooling at a mainstream public school. Again, in the absence of any tested evidence of the child's last teachers, the view taken by a Family and Community Services officer supporting the child remaining at school seems sound. The Court accepts that a parent is entitled to seek that a child be home schooled and must undertake formal application processes and maintain appropriate reporting to authorities of the child's educational development. I accept the mother has done so - despite the father's opposition to home schooling. I am not satisfied that the child's recent challenging behaviour (whatever her diagnosis) justifies of itself, the mother's decision to home school the child. I note that the maternal grandmother supports her daughter's decision - perhaps reflective of her decision many years ago to home school the mother. The risks of and losses from home schooling, were identified by Dr J. I accept her concerns, which might be ameliorated if, as the mother and maternal grandmother sated, it is the intention to re-enrol the child when she has "caught up". I do not hold much confidence that will occur, but I hope the future proves I am wrong; d) I am not satisfied the mother, in some vindictive or calculated way is overtly "alienating" the child from the father - although from the father's perspective I accept he genuinely believes that to be the case. As already stated, a combination of the mother's lack of support; the child's wishes and behaviour and the inability to achieve any momentum at all in maintaining any contact between the child and the father since the event in September 2015, all have made it extremely comfortable for the child to align her beliefs and feelings with that of the mother. At her age, it would take an extremely robust little girl to take on the mother and the maternal grandmother. This child has some vulnerabilities as I discuss next, and has simply shown no capacity at all to challenge her mother at this time. In my view however, it seems more likely than not, that such a time will arise in the future; e) The mother relied upon two assessments, both of some age, to support her position that the child is an anxious and vulnerable child. I am prepared to accept she is - as the more recent assessment by Dr J, read as a holistic document, raises concerns. However the two assessments should be considered in light of the ongoing parental conflict and lack of positive involvement of a loving and caring father who was available. In respect of those assessments I record that: i) The psychological assessment - made 15 July 2015 did not assess her "mental state" nor did the P Psychology clinician provide any form of counselling or intervention. The child's overall cognitive skills could not be calculated, and the testing results varied, "due to the inconsistency in her engagement throughout the assessment process". During the assessment, the clinician observed "the use of boundaries by the child's mother were observed to have an inconsistent effect". The assessment recommended further assessment. It is not clear why further assessment as recommended was not initiated by the mother, save for the assessment by Autism Spectrum Australia which I discuss next. ii) The child was assessed on 2 March 2017 when almost 7½ years of age. The report suggests the referral to "Aspects Assessments" was made by a Paediatrician for a "comprehensive diagnostic assessment to determine whether or not the child's presentation is consistent with a diagnosis of autism spectrum disorder." At the time of the assessment, the child was enrolled in a support class at Q Primary School for three days a week and was attending J Primary School for two days a week. The father does not accept the conclusion reached by the assessment, namely that: …The impression is that [the child] has difficulties across both areas of impairment. Her current presentation meets sufficient criteria for a DSM-5 diagnosis of autism spectrum disorder and further that: …[the child] will require substantial support in terms of her social interaction and social communication difficulties… (and) in terms of her restrictive and repetitive interests, activities and behaviour. Although the report does not suggest that home schooling was the preferred option for the child, the mother's concerns about the child's behaviour at school ("meltdowns") and school opposition combined to encourage her to home school. I am not satisfied that restricting the father to information about the child's educational development (which would have been easier to access if the child continued in mainstream schooling) was a significant influence on the decision to home school, as the father contends. f) I find that the father has both the capacity to meet the child's physical needs and a genuine desire to meet the child's social, emotional and psychological needs. He is a thoroughly decent human being. I was also impressed with the paternal grandmother. He has maintained a persistent engagement with the Court process and, sadly, in my view in hindsight the delays in the Court processes have not assisted; g) It should also be noted that the intervention of the serious medical issue confronting the mother in February 2016 had a further major impact - particularly where the mother moved to the F Town area. When Dr J was engaged, the reunification simply could not be achieved. It was the ultimate conclusion reached by Dr J, that reunification cannot be achieved - causing the identification of "extreme orders" to be the only real option. I am satisfied that the father would be willing to do just about anything to have a relationship with his daughter. However such a genuine desire does cause him, in my view, to underestimate the challenges that the child would present if a change of residence would be ordered. I explore this concern further in these Reasons. Primary and additional considerations
I chose to make some further findings, whilst adopting but not repeating earlier findings set out these Reasons: a) I find it is of benefit to the child to have a meaningful relationship with the father - if it can be achieved. Such a relationship already exists between the mother and the child, as much as a reflection of her continued role as primary carer since separation, if not the level of her care; b) Despite the fears expressed by the mother and maternal grandmother (and now shared and accepted at this time by the child), I do not find that the child is at any risk of physical, sexual or emotional harm in the father's care. I do find that whilst the mother does not present as a risk to the child of neglect or physical harm, the mother's behaviour and view of the father is likely to distort the child's emotional wellbeing. The extent and affect upon the child and of the mother's attitude and behaviour cannot really be assessed. History is littered with examples of children who developed into well-functional adults and citizens without input by one parent. However, as Dr J opines, and I accept, this is not the ideal situation when the other parent has the capacity to offer the child some balance and some love - as this father could in my view. Sadly, sometimes children have to wait until the independence which comes with adulthood before they are capable of developing a relationship with a parent who is not in their life (for whatever reason), during their infancy. c) The wishes and feelings expressed by the child to Dr J (see paragraphs 79 to 82) confirm that she does not want to see her father, yet Dr J opines that "[the child's] views probably mirror those that have been historically held by the mother and grandmother and have been conveyed to [the child]." I accept this opinion. I also agree that the child "still seems to wield an overwhelming and frightening amount of power" and that the child will not like being said "no" to, as Dr J said in cross examination. As a result, the wishes expressed by the child cannot be given determinative weight - even though the mother said to Dr J, that she "is critical that [the child's] voice has not been heard" and that the child is frustrated because her views have "been ignored". d) Although Dr J indicated a degree of connectedness with the mother and an element of ambivalence, the child's strongest relationship is with the mother and then the maternal grandmother. Sadly, despite all attempts, Court ordered and persistent efforts by father, the child does not have a relationship with him or his parents; e) The father has been effectively denied, by the mother's behaviour, from participating in making decisions about the child or spending time or communicating with her; f) In circumstances where the mother's decision (initially shaped by her need for medical attention) to live in the G Town area seems now to be permanent - some real practical difficulties and expense exist for the father (living in O Town) spending time with the child. The father's proposal is, in my view, partly based on a likelihood that if the child were to live with him, then the mother would surely follow. The mother confirmed she would, in those circumstances, move to H Town. The maternal grandmother would also move, albeit reluctantly, even though she has recently purchased a home in the G Town area where the mother and child also live. Interestingly, the mother and maternal grandmother both say that they would not consider moving to E Town because of the father's sinister influence alleged to be shared by others (unnamed) in the region. I have no doubt the father has more supporters in the area in which he has lived and worked for some time, but to attribute some sinister motives on these friends is without evidentiary foundation. In any event, it would have a coercive effect if the Court made an order for the child to live with the father, so as to encourage the mother to move closer to the father. I do not contend that the father's orders are designed with that particularly in mind. g) I do not make findings about the parents' capacity and attitude to parenting beyond those already made, which I adopt for the purposes of s.60CC(3)(f) and (i). h) There are no current family violence orders in existence and I am not satisfied that violence between the parents would necessarily erupt if the parents came into contact with each other. Making an order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view, the orders made by Tree J were described as final orders, but the effect of order 14 was to create only a short term process. It is unhelpful to speculate what would now be the situation for the child if, after the breakdown of the contact with the father around 11 September 2015, the Court's attention had been reactivated. That was a critical time in my view but the history shows that by the time Le Poer Trench J suspended orders formally some two years later, the momentum (such as it was) had been extinguished.
The evidence does not indicate that a "further" interim order is likely to achieve a reunification. I agree with Dr J in this regard.
As a result, the mother's proposal at Exhibit 10, is doomed to fail in my view. There was no evidence that Mr BB has the "key" to unlock this rigid position held by both the child, and her major influencer - the mother and the maternal grandmother. The effect of a change of residence
… regrettably the Court is faced with two stark and "extreme" options, namely: a) if the child lives with the mother, there is unlikely to be any change in the attitude of the mother and maternal grandmother to the father - wrongly held and destructive of the child feeling she is even able to explore a relationship with the father. The mother is likely to be highly vigilant and overprotective. She will meet her physical needs and will do her best to meet the child's emotional needs. There is a likelihood without intensive counselling that causes a change in attitude for the mother, that her parenting style towards the child will create huge difficulties in managing the child's behaviour. For these reasons I could not discount the real prospect that as the child approaches her teenage years, the mother may simply be unable to manage her - although I am sure she would do her best. The mother might, as she says, return the child to mainstream schooling, which on the evidence would be a good thing. The child presents now as a vulnerable child who is headstrong and wants (and usually now gets) her own way. She may well never challenge the current view she expresses that the father is a person to be "feared" - even if she is unable to articulate a cogent reason for this belief. My sense is, that at a later point in her life she will challenge that belief - and it could have a significant effect on her adult relationship with the mother. However, at this time, she is simply not ready to do so, and as Mr V opined over three years ago, there were difficulties in "transitioning this singular positive experience into an ongoing health relationship" with the father; and b) a change of residence to the father will not only involve a change to a completely unknown and untested situation - where the child spends time with the mother of limited duration and even supervised - but to a father who, I assess, has little real understanding of the difficulties to be faced. I am not satisfied that with the journey this child has been forced to navigate, any amount of intense counselling will prevent a serious meltdown - perhaps with tragic consequences. The father will exert every ounce of effort and seek every professional assistance, but when a highly skilled psychologist like Dr J has reached a conclusion that reconciliation is not possible, I can hardly ignore that opinion. Conclusion 50. The parties and anyone else who ultimately reads these Reasons will be struck by the strong criticisms of the mother I have made. If the mother had obtained and maintained some intensive therapy after the, no doubt, confronting observations of Tree J, who knows how the mother's entrenched views may have changed towards the father. 51. If the test to be applied was that a poor parent should be "punished" and a patient parent who has done little wrong, should be "rewarded" - then a change of residence in this case would be a proper result. 52. However, as the High Court recently reminded us all in Bondelmonte v Bondelmonte [2017] HCA 8, that is not the test. The test to be applied and the question to be determined is what is in the child's best interests. 53. I have found this a very difficult case, but on balance, with the findings already made, it is in the best interests at this time that the child should live with the mother and the mother should have sole parental responsibility for major long term issues. The lack of any communication between the parents and the findings already made satisfy me that applying the presumption is against the child's best interests. 54. I cannot be satisfied that any attempt by Court order to encourage, force or coax the child to spend time with the father is likely to be successful. It pains me to say so, as Courts (by application of the principles set out in the Act) begin with that end in mind. 55. However, even if it could lead to the institution of contravention proceedings, I propose to order a range of obligations upon the mother which the father is encouraged to use for the child's best interests that are designed to encourage an older the child to initiate contact in some form with the father. 56. The Court will never know what future contact will be, but I am satisfied that this is the best the Court can do at this time.
As noted, the Family Court made Orders that had the effect that the child lives with the mother and that the Applicant is only permitted to have very restricted contact with the child. The Family Law property issues remain to be resolved.
In addition to the Family Court proceedings, EJU has also been involved in other litigation. He has been the subject of social media publications apparently intended to impugn his character. A Mr Adam Whittington made the allegation that the Applicant was a paedophile. EJU has taken steps to address that issue and anticipates that it will likely result in a class action with the aim of having defamatory social media posts removed.
This is the context in which the Commissioner's revocation decision was made.

The Commissioner's Case

The Commissioner has identified a number of factors, referred to as 'stressors', which he contends would potentially impact on the Applicant's wellbeing.
Mr Grey, the Commissioner's solicitor, made submission in relation to each of the 'stressors'. He submitted: Stressor 1 - Family Law Proceedings The Applicant has been involved in numerous hearings in the Federal Magistrates Court and Family Court for over nearly a decade. … What emerges from the above history of is that despite the Applicant's earnest and persistent applications to the Court to obtain orders for him to have the parental responsibility for his daughter, he has been quite definitively unsuccessful. ... Regardless of the reasons, the Orders have a harsh operation upon the Applicant, who has fought long and hard to have either the custody or reasonable fatherly access to his daughter. With the dismissal of his notice of appeal, it seems that the Applicant has no further legal redress available. That in itself must be a bitter situation to have to accept.
The Respondent submits that as the Family Court proceedings continue with respect to property matters, the Family Court proceedings will remain a stressor for the Applicant until they are finalised.- Stressor 2 - ADVO Proceedings In March 2012 the Applicant was served with an ADVO by police ... On 2 December 2012, Lismore Local Court marked apprehended domestic violence orders for the protection of [the child]. The Applicant appealed. ... the decision of the District Court … outlines the allegations of sexual abuse by the Applicant upon his daughter that had been alleged. After reviewing the matter the Court commented that: ".. .the evidence of any sexual contact between the appellant and his daughter is so frail and inconsistent that on the balance of probabilities the court could not properly make an order limiting contact by making an apprehended domestic violence order." The District Court revoked the ADVO order made on 5 December 2012 …
Mr Grey submitted that the service of an ADVO upon the Applicant, the numerous appearances before the Local Court and finally before the District Court, would no doubt have been stressful for the Applicant, especially given that the factual basis for the allegations which founded that ADVO were "frail and inconsistent" or simply false and malicious. Mr Grey noted that whilst the Applicant ultimately had a successful outcome, the 2011 allegations of sexual abuse of his daughter have been the source of continued problems for the Applicant on several fronts which are in addition to the Family law proceedings.
He further submits that it appears that despite the numerous and lengthy hearings and the Full Court's decision, the Applicant continues to believe that he has been treated unfairly by the judicial system and this is indicative that the matter, although concluded, remains a source of residual stress to him. Stressor 3 - Facebook vilification
The Applicant has become the subject of a 24 minute video and written comments by Mr Whittington which have been posted on Facebook. Mr Whittington alleged, in no uncertain terms, that the Applicant was a paedophile. The Applicant took a number of steps to have the offending posts removed. Firstly he posted a denial on Mr Whittington's webpage. This resulted in further abusive posts by Mr Whittington, and a block being put on the Applicant making further posts. In May 2019 the Applicant sought intervention by police. He requested police to issue an Apprehended Violence Order against Mr Whittington.
Police declined to take such action as Mr Whittington was residing in Sweden and because the posts, while certainly offensive, were not considered to be threatening.
Mr Grey submitted that: It is obvious that these posts by Whittington have distress and traumatised the Applicant, who described to police as not only suffering a loss of reputation, but also harm to his mental health and giving rise to fears for his physical safety due to Whittington's comments inciting violence towards him.
Mr Grey further submitted that: The Applicant's comments indicate that he regards the Facebook vilification as being a conspiracy situation, and that Whittington is a mouthpiece for his ex-wife. The Applicant says that he will ignore Whittington's diatribes and avoid Facebook as much as possible. Having regard to the Applicant's intended participation in a defamation action against Facebook which is linked to Whittington's posts, it is inconceivable that he will do either of these things. He is now a party to a group of potential litigants who will each be vigilant as to Whittington's posts. Presumably the Applicant will view any post which any group member identifies and record it for litigation purposes. The very nature of the posts have always been of the greatest offence to the Applicant and any that remain visible on Facebook, or any new ones which are posted, will continue to be a source of stress to the Applicant. Stressor 4 - APVO Proceedings
The Applicant subsequently applied directly for an AVO against Whittington.
An Interim APVO was issued in July 2019 and the matter was then listed for hearing in December 2019. In September 2019 an application was lodged on behalf of Mr Whittington for an APVO against the Applicant. The matter was listed for hearing on 24 September 2019. The Applicant's firearms licence was suspended and the APVO proceedings against the Applicant were referenced as one of the reasons for the suspension. Mr Whittington's application for an APVO was dismissed in October 2019.
The Court ultimately dismissed the APVO application brought by the Applicant against Mr Whittington as it did not accept that the posts were threatening. The Court also dealt with an application for costs and made an order against the Applicant. He was ordered to pay $3,500.
Mr Grey submitted that: The dismissal of the AVO applications and the making of the costs order against the Applicant … must have been a particularly galling experience. ... Furthermore, in the absence of a retraction by Whittington of his allegations, the threat to the Applicant's personal safety continues unabated.
Mr Grey noted that the Applicant commenced the AVO proceedings and stated, on oath, that he was in fear for his life. He made several other statements concerning his level of fear and apprehension from supporters of Mr Whittington who may be incited to take matters into their own hands. He noted that there have been no further changes to the Applicant's situation since that time and it is probable that the Applicant continues to hold fears from Mr Whittington's supporters and that this continues to be a stress factor.
Mr Grey also noted that the Applicant continues to be somewhat aggrieved by the failure of police to take action in respect of his fears for his safety. Mr Grey submitted that this is indicative of this factor continuing to be a stressor for the Applicant. Stressor 5 - Proceedings for defamation
Mr Grey noted that the Applicant had issued a 'cease and desist' letter and a 'Concerns Notice - Defamation Act (NSW) 2005" letter to Mr Whittington and submitted that these are steps which precede the institution of an action for defamation. The Applicant confirmed that defamation proceedings are to be taken as part of a class action against Facebook. Mr Grey submitted that: defamation actions can be extremely taxing proceedings, especially where strenuously defended. Highly personal claims and counter-claims typify these cases. It seems likely, based upon the 'righteous' evidence given by Whittington in the Local Court proceedings, that he would be likely to strenuously defend any defamation action, and would also be likely to raise a counter-claim. Civil actions are also subject to costs orders against unsuccessful litigants. Such proceedings, from commencement to decision, could be very costly to an unsuccessful party. The process of litigation can also be very protracted. The commencement and conduct of a defamation action would be a further stressor.
Mr Grey submitted that the Applicant must again revisit the claims that Mr Whittington made against him and that this stressor will affect the Applicant for an indeterminant period. Stressor 6 - Financial
Mr Grey noted that the Applicant raised his financial circumstances in the Local Court in relation to a discussion about the potential for a costs order to be made against him. The Applicant had indicated that, as at 19 December 2019, he was impecunious. Mr Grey submitted that if the Applicant is still in a poor financial position it would be a further potential stressor for an indeterminant period. Stressor 7 - Victims Compensation application to NCAT
Mr Grey submitted that it appears that the Applicant has been taking steps to have claims for victim's compensation by his former wife and her mother reviewed and/or disallowed by the Victim Services on the basis of fraudulent allegations made against him. The Applicant had urged for the prosecution of his former wife for giving false and misleading information in her application.
Mr Grey pointed to the Applicant's advice that he has current proceedings in the Tribunal in relation to the issue with Victims Services. Mr Grey submitted that this is a further potential and on-going stressor and will affect the Applicant for an indeterminant period. Stressor 7 - Application to NCAT for review of decision to revoke firearms licence.
Mr Grey noted that the Applicant has been the subject of the suspension/revocation of his licence and has been involved in the review process since September 2019. Mr Grey submitted that: The withdrawal of his licence, which effectively bars him from participating in his recently discovered sport of pistol shooting and enjoying the camaraderie of fellow shooters, is described as 'a kick in the guts' by the Applicant. … In that shooting appears to be the Applicant's only form of recreation and one which introduces some positive elements into his life, the denial of that activity may also be a stressor.
Mr Grey further noted that if the Tribunal were to affirm the decision under review, the Applicant may, as with the various other matters referred to above, elect to appeal the decision to the Appeal Panel. If so, the stressor of the proceedings would continue. Stressor 8 - Associates
Mr Grey noted that the Applicant has empathy for persons who have suffered at the hands of the 'system', Facebook accusers and decisions of Courts and he has taken steps to try to assist others to seek redress. Mr Grey submitted: While this is a commendable goal, this exposes the Applicant to an environment in which many unfortunate and depressing human stories will be communicated to him. This in itself could prove to be another stressor.
Mr Grey noted that the Applicant has openly disclosed that the events of the preceding decade have caused him such a degree of frustration and stress that he has undergone counselling. He saw Dr James Alexander on at least 20 occasions between September 2011 and 24 June 2014. Mr Grey recognizes that it was appropriate and prudent of the Applicant to take the initiative to seek professional assistance as he did. However, it does highlight the degree to which the Family Court and AVO proceedings were affecting him.
The Applicant confirmed his association with many dads who have sad and tragic outcomes from family law proceedings. He intends to assist these persons to navigate the family law system. Mr Grey submitted that the stressor of these associations will continue.
Mr Grey acknowledges that Dr Alexander has provided three reports which speak positively of the Applicant's character. However, he submits that some of Dr Alexander's comments go beyond mere reporting on the Applicant's psychological condition and extend to advocacy.
Mr Grey submitted that: It may be that Dr Alexander, over a long association with the Applicant, has become too close to be entirely objective.
The Respondent submits that little weight can be placed upon any of the correspondence from Dr Alexander.
Dr Alexander's letter dated 25 February 2020 appears to have been prepared in contemplation of the proceedings before the Tribunal. However, it pre-dates the Respondent's Outline of Submissions and doesn't address the issues that the respondent raised regarding the effect of the stressors. Further, Dr Alexander was not available to give evidence or to answer questions.
Mr Grey referred to some cases that have received high profile media coverage in recent times. He referred to media reports of "highly public human disasters that have arisen out of family conflicts". He submitted that while the Respondent does not wish to liken the Applicant to those matters, he does seek to draw attention to the care that needs to be taken when assessing what risk may be present or risk which could arise. He submitted that risk may exist even in the absence of overt threats of violence or criminal records. He says that in assessing risk, regard should not only be given to the possibility of harm coming to a spouse or child, but also to extended family, tormentors and even the risk of self-harm.

The Applicant's Case

The Applicant contends that the decision to revoke his firearms licence should be set aside. He submits that the Respondent's case is entirely speculative and theoretical and is not backed by evidence before the Tribunal. He says that there is no evidence that he presents any real and appreciable risk to public safety.
He provided a response to address each of the Respondent's perceived 'stressors'. Stressor 1 - Family Law proceedings.
The Applicant says that the family law matter are now finalised but in any event they are largely irrelevant to the current proceedings and should be given little, if any, weight. He submits that nothing adverse about his character can be drawn from either the proceedings themselves or the final orders that were made. The orders made no adverse finding against him and, other than giving the mother sole parental responsibility, there are no prohibitions in the orders preventing him from contact with his daughter.
He says that he has come to terms with the orders. He accepts that there was a time when he might have been vulnerable but he had access to firearms for seven months after the final orders were made without incident or succumbing to any 'stressors'. He submits that it was not until Mr Whittington's APVO that the firearms were seized.
The Applicant says that the only remaining issue in the family law proceedings is the property issue. He and his former wife are negotiating in regard to that issue with a view to the Applicant purchasing his former wife's share of the property rather than selling it. Stressor 2 - ADVO proceedings
The Applicant says that the proceedings referred to were in 2013 and he was vindicated of the allegations made against him. He concedes that it was an unpleasant experience and that it which was a huge relief when the issue was resolved. Stressor 3 - Facebook vilification
The Applicant says that the issues that the Respondent has identified as stressors 3, 4, 5 and 7 are all interrelated to the Whittington scenario. He concedes that he found being publicly accused of being a paedophile highly offensive but regrets that he engaged with Mr Whittington the way that he did. He also stated that he found it was quite distressing to learn that Mr Whittington was being informed by his ex-wife and her mother. He says that Mr Whittington is speaking on behalf of his ex-wife, publicly saying the things she can't, and with the impunity afforded by residing outside of the Australian jurisdiction.
The Applicant says that his current strategy is to ignore Mr Whittington's posts and not react and, as much as possible, to avoid Facebook altogether. He says that if he is alerted to any commentary that Mr Whittington has made about him he will just make a record of it. Stressor 4 - APVO proceedings
The Applicant agrees that there is no imminent threat from Mr Whittington and that there is no risk that he would travel to Sweden with firearms to shoot Mr Whittington. He says that because of his present circumstances he is not particularly stressed about potential reprisals from Mr Whittington's followers. Stressor 5 - Defamation proceedings
The Applicant says that he has been receiving assistance from a Dr Janice Duffy who successfully sued Google for defamation. He anticipates that there will be a class action against Google, Facebook and WordPress if they do not take down Mr Whittington's posts. Therefore, any burden or 'stressor' arising from those proceedings would be shared with a group of other supportive individuals. Stressor 6 - Financial
The Applicant says that for the past few years he has been a student living on Austudy, supplemented only by some casual employment. He has self-funded his family law matter since a Legal Aid grant expired in 2015. He is looking forward to graduating and finding employment as a junior solicitor and stabilising his finances. Given the COVID scenario he does not consider his financial situation to be any worse than many other people at the moment. Stressor 7 - NCAT Victim Services application
The Applicant agrees that the award given to his daughter has caused him a lot of trauma. He says that, for the most part, this is because his ex-wife is using it as a weapon against him. He says that he is following the appropriate legal avenues to have that decision reviewed.
The Applicant says that he does not find preparing for court appearances and tribunal hearings particularly stressful and that he expects that as a professional he will deal with it on a regular basis. Stressor 7a - This application
The Applicant says that the denial of his sporting outlet hasn't really been too inconvenient due to COVID restrictions. He says that he also enjoys other forms of recreation such as bushwalking and sailing, however he regarded target shooting as an inexpensive, local, sociable pastime that he was able to enjoy on a weekly basis and one that he would like to resume. He feels that the decision to revoke his licence was arbitrary, biased and without foundation, and he is compelled to challenge it in order to resume his genuine legal sporting pastime. Stressor 8 - Associates
The Applicant agrees that he has come across many sad and tragic outcomes from Family Court proceedings. He hopes to help others navigate the family law system and hopefully assist with reform of the family law system to help prevent tragic outcomes like the high profile cases to which the Respondent has referred.
The Applicant does not dispute that he has experienced stress from the situations that the Respondent has identified. However, he denies that they continue to impact on his life in any significant way. He says that there are many factors in mitigation of the 'stressors'. He resides in a quiet rural location surrounded by wildlife and nature; he enjoys good physical and mental health with no ailments or illnesses. He is not taking any medications, although his naturopath provides herbal remedies for stress. He has engaged in therapy and counselling with Dr Alexander as well as with a student counsellor. He has a Buddhist philosophy towards life and maintains a positive outlook, assisted by regular meditation. He is about to graduate with a law degree and prospectively to be admitted as a solicitor. He says that this will enable him to assist others as well as to lobby for law reform. He says that he has a very supportive family, including his parents who live an hour away from him, and very supportive friends and neighbours in his community.
As noted, the Applicant has provided reports from Dr Alexander. In a report dated 25 February 2020 Dr Alexander stated: "[O]ver the years that I have known him, I have experienced nothing of [EJU] which would suggest he poses a threat to anyone's safety or wellbeing. His behaviour indicates a high degree of commitment to the rule of law."
He says that target shooting was a social and sporting outlet that afforded him some enjoyment. He denies that is his only outlet. He enjoys riding his motorcycle and often went on road trips with mates. He has regularly attended festivals such as Woodford Folk Festival as a volunteer and is in the process of applying to be a foster carer.
He says that there is no similarity whatsoever between his circumstances and the circumstances of the high profile cases to which the Respondent has referred.
He submits that at its highest the Respondent's case is that he could be a vulnerable person due to stress and that therefore it is not in the public interest for him to have access to firearms. He concedes that he has experiences difficult times but says that he has survived and is about to embark upon a legal career in which he can make a difference for others going through what he has endured.
He says that he has not had communicated with his ex-wife since 2012 other than at a courtroom or through lawyers. He denies that he has any desire to harm her or anybody. He wants to help other people, not harm them. He says that the Respondent's case is entirely speculative and theoretical and it is not backed by evidence that is before the Tribunal. He submits that there is no evidence that he presents any real and appreciable risk to public safety and that the decision to revoke his firearms licence should be set aside.

Discussion

The Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence. This involves a discretionary value judgement taking into account matters relevant to the exercise of the discretion. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act. The underlying principles stated in section 3(1) of the Act emphasize that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.
The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms.
The concept of the 'public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The 'public interest' allows for issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
The Respondent has identified a number of factors which it says are relevant considerations because of their potential to place the Applicant under stress. The Applicant has denied that there is evidence to suggest that those factors are more than theoretical considerations. He does not dispute that they were previously a source of stress but he says that they are no longer significant considerations.
I accept the Applicant's evidence in this regard.
I agree that the Respondent is rightly concerned that the stress arising from bitterly fought family law matters has the potential to give rise to tragic outcomes. Mr Grey's reference to media reports of "highly public human disasters that have arisen out of family conflicts" provides extreme examples of such tragedies.
It is not possible to predict with absolute certainty where the risk lies in any particular situation. The decision in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is often cited in regard to the issue of risk. The Tribunal stated at paragraph [28]: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
However, only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to prior conduct: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
In this matter, the Respondent's concerns are based on prior conduct in that the 'stressors' are said to arise from the circumstances that have overshadowed that Applicant's life in recent years.
The Applicant has provided an answer to each of the 'stressors' that the Respondent has raised. In my view, sufficient balance is given to the theoretical risk identified by the Respondent when the Applicant's evidence is considered in light of the positive comments that have been made in regard to in various decisions in matters in which the Applicant was a party. As noted, in the 2019 decision the Family Court identified the Applicant as "a thoroughly decent human being". Similar assessments have been made in other matters.
There is no suggestion that the Applicant is not a fit and proper person to possess firearms. There is no suggestion that he has resorted to the use of violence as a means of resolving stressful situations. The evidence suggests that he has exercised whatever rights were available to him under the legal system. The proposed class action demonstrates his intention to continue that approach. I note that this view is supported by Dr Alexander, however I also note that Dr Alexander was not available for cross-examination.
In the circumstances, I have no basis for finding that there is more than a minimal risk to the public if the Applicant is allowed to possess firearms. I am not satisfied that it would be contrary to the public interest for him to continue to hold a firearms licence.
That being the case, it is my view that the decision to revoke EJU's Category H firearms licence is not the correct and preferable decision. Accordingly, it should be set aside.

Order 1. The decision to revoke EJU's Category H firearms licence is set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020

At a glance

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Judgment (11 paragraphs)

Parties

Cases Cited (3)

Cited By (2)