NSW Land and Housing Corporation v Reid

Tenant's submissions

1. The tenant relies on a bundle of documents (marked Exhibit R1).
2. The tenant submits the following: 1. The tenant's son was not a lawful occupant in the premises because any permission ( tacit or express) given by the tenant to her son was not freely and voluntarily given, but coerced by threats of violence against her and other duress, thereby vitiating it. 2. The offences charged against the tenant's son by NSW Police arising from 17 May 2017 did in fact occur and the tenant's son was charged for them, but the tenant was not the subject of any charge in respect of them and could not be held in any way liable or responsible for those committed by her son, because she was under duress and fear of violence from her son at the time and could not have taken any reasonable steps at the time to avoid the criminal behaviour her son was engaging in. 3. The premises were not used for the "storage' of a firearm or, if the Tribunal finds that they were, then the tenant had no knowledge of the firearm's presence nor was she reckless as to its presence; 4. By reason of duress and fear of violence and not being present at the premises on 17 May 2017, or the week prior, the tenant did not intentionally or recklessly cause or permit the use of the premises by the tenant or any other person on or about 17 May 2017: 1. For the purposes of the manufacture, sale cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985; or 2. For any other unlawful purposes; 1. Further or, in the alternative, and given the exigent circumstances if the tenant was in , any unlawful use of the Premises ( by her son or any other person at the time) is not sufficient to justify a termination order as is required per subsection 91(1)(b) and subsection 154D(2)(c) of the Act; 2. Further or, in the alternative, the tenant suffers from a range of medical conditions ( psychiatric and physical) each of which is a "disability' for the purposes of section 154D(3)(b) of the Act and section 4 of the Anti-Discrimination Act 1977 (NSW), and she would suffer undue hardship, in that the hardship she would suffer would be "excessive in the circumstances" if the tenancy were terminated; 3. Further or, in the alternative, the tenant is "a person in whose favour an apprehended violence order could be made" for the purposes of subsection 154D(3) of the Act and she would suffer under hardship if the tenancy were terminated; 1. A court could make a final Apprehended Domestic Violence Order in favour of the tenant against her son in accordance with section 16 of the Crimes (Domestic and Personal Violence) Act 2007. 1. The Tribunal should dismiss the landlord's application. However, if the Tribunal is against the tenant on the primary question and decides to make a termination order, on the basis of the evidence that will be before it, the tenant urges the Tribunal to exercise its discretion in the orders it may make, pursuant to sections 187 and 188 of the Act, to make an ancillary order ( as to possession) as follows: "The order for possession is suspended for a period of 6 months from the date of the termination order, to give time for the respondent to find alternative accommodation, and thereby assist her to try to avoid being rendered homeless".

Relevant Legislation

1. The legislative provisions on which the application before the Tribunal is based are ss91, 154D and 154E of the Act.
2. Section 91 is found in Division 2 of Part 5 of the Act. Part 5 is concerned with termination of residential tenancy agreements. Division 2 is concerned with termination by landlords. Section 91 provides: 91 USE OF PREMISES FOR ILLEGAL PURPOSES (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
3. The application for termination and possession in this case was made under ss 91(a) and (b) of the Act.
4. In private tenancies, the Tribunal has a discretion (if a breach is established) as to whether to terminate a tenancy agreement under s91 (1) (a) and (b): Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28. However, s 154D of the Act modifies that position in respect of social housing tenancy agreements.
5. Section 154D of the Act is located in Subdivision 4 of Division 5 of Part 7 of the Act. Part 7 applies to social housing tenancy agreements. In accordance with s137 of the Act, Part 7 prevails to the extent of any inconsistency between its provisions and any other provision of the Act or the regulations. Division 5 of Part 7 concerns termination of social housing tenancy agreements and Subdivision 4 concerns termination on the basis of breach.
6. Relevantly to the facts in this matter, s 154D provides: Tribunal required making termination order in certain circumstances 154D TRIBUNAL REQUIRED TO MAKE TERMINATION ORDER IN CERTAIN CIRCUMSTANCES (1) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord under a social housing tenancy agreement if: (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90 (1) (b) and the injury constitutes grievous bodily harm within the meaning of the Crimes Act 1900 , or (b) an application for the order is made under section 91 and the Tribunal is satisfied of the matters set out in section 91 (1) (a), or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for the purposes of: (i) storing a firearm for which a licence or permit is not held under the Firearms Act 1996, or (ii) a show cause offence within the meaning of the Bail Act 2013, and the tenant or other person has been charged with an offence relating to those circumstances (whether or not the person is or has been found guilty of the offence). (2) Subject to subsection (3), the Tribunal must make a termination order on the application of a landlord if: (a) an application for the order is made under section 90 and the Tribunal is satisfied of the matters set out in section 90 (1) (and subsection (1) of this section does not apply), or (b) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used: (i) as a brothel within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) for the purposes of an offence against section 91H (Production, dissemination or possession of child abuse material) of the Crimes Act 1900, or (iii) for the purposes of an offence against section 154G (Facilitating organised car or boat rebirthing activities) of the Crimes Act 1900, or (c) an application for the order is made under section 91 and the Tribunal is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) to be used for any other unlawful purpose and that the use is sufficient to justify the termination. (3) However: (a) subsection (1) (a) does not apply if the application for the termination order is based on an act of a person who although not a tenant is occupying or jointly occupying the residential premises and not on an act of the tenant, and (b) subsections (1) and (2) do not apply if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977 who is occupying or jointly occupying the social housing premises, and (c) subsection (2) does not apply if the tenant satisfies the Tribunal that there are other exceptional circumstances that justify the order not being made. (4) For the purposes of the application of section 91 (1) (b) to social housing premises under this section: (a) the reference to residential premises in section 91 (1) (b) is to be taken to be a reference to the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), and (b) if the Tribunal is satisfied that an offence of a kind referred to in subsection (1) (c) or (2) (b) has been committed by a person on the social housing premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others), the Tribunal must assume that: (i) the premises or property has been used for an unlawful purpose, and (ii) the use is sufficient to justify termination of the agreement. (5) If the Tribunal does not make a termination order as a consequence of subsection (3), the Tribunal must provide written reasons for the decision.
7. As set out in the Appeal Panel decision of Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237 a t [paragraph 33]: Where an application under section 91 of the Act is made in respect of a social housing tenancy agreement and s91 (1) is established, s 154D (1) means that termination of the agreement is mandatory, unless s 154D (3) applies. , So if, as in this case, the tenant whose tenancy agreement a social housing landlord seeks to have terminated under section 91 of the Act, is a person who suffers from a disability within the meaning of the Anti-Discrimination Act 1977 and the Tribunal is satisfied that a termination order "would be likely to result" in the tenant suffering "undue hardship", a termination order is not mandatory. Rather, the Tribunal has a discretion as to whether to make termination order under section 91.
8. Once s154D(3) is engaged and the Tribunal has a discretion in relation to whether to terminate a social housing tenancy agreement, the Tribunal must have regard to the factors set out in s154E of the Act , which provides: Exercise of discretion to make termination order 154E EXERCISE OF DISCRETION TO MAKE TERMINATION ORDER (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following: (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
9. As stated in s154E (2), the factors set out in s 154E (1) are not exclusive. The Tribunal may take other relevant factors into account in exercising its discretion.
10. Terminating a social housing tenancy agreement under section 91(1) of the Act therefore involves a three stage process: 1. Determining whether the elements of s 91(1) are made out. 2. If the elements of section 91(1) are made out, determining whether s154D (3) applies so as to give the Tribunal a discretion as to whether to terminate the tenancy agreement. 3. If s 154D (3) applies, exercising the discretion in relation to termination having regard to the factors listed in s154E (1) and to any other factors relevant to the exercise of the discretion.

Are the elements of section 91(1) made out?

1. The Tribunal is satisfied that the charges brought by the NSW Police against the tenant's son, in particular possess unauthorised pistol, use unauthorised pistol, possess ammunition w/o holding licence/permit/authority and not keep firearm safely pistol, is evidence that the premises were being used for an unlawful purpose.
2. The tenant has argued that her son was not "occupying" the residential premises. The Tribunal has considered the evidence before it and is satisfied that the tenant's son was occupying the premises at the time that the offences occurred. In making this finding the Tribunal has considered the following: 1. Affidavit of the tenant dated 6 September 2018 at [32} 2. Statement given by the tenant to NSW Police on 17 May 2017, during the execution of the search warrant, where she stated she resided at the premises with her son Nicky Fahey (Exhibit A1 at [A13]). 3. NSW Police records which indicate that Nicky Fahey recorded the premises as his address from time to time in the period from 2014 to 2018.( Exhibit A1 at [A16] ) 4. NSW Police Statement to Police of Nicky Fahey dated 5 August 2017 where he admits to "staying" at the address between 2 to 5 nights a week. Nicky Fahey gave to the Police as an address at Angus Avenue, Waratah West with his father. Mr Fahey's father denied to NSW Police that he resides with him at the address at Waratah West. 5. Items found at the tenant's address that appear to belong to Nicky Fahey, which included; Virgin Mobile documentation in the name of Nicky Fahey: a pension card in the name of Nicky Fahey and medication in the name of Nicky Fahey. 6. A NSW Police Witness Statement from Dylan Probert, where Mr Probert states that he has known that Nicky Fahey lives with his mother (the tenant) at the residential premises and he has lived there since before 2012. Mr Probert states that he has been to the house "hundreds or thousands of times".
3. The tenant denies that her son was 'occupying' the premises. The tenant does not deny that her son sometimes "shows up" at the premises. She states that she would never know when he was going to do this. When he comes over the tenant asks him to leave, but he usually refuses to go, so the tenant leaves to avoid conflict and violence from him. In support of her evidence that her son did not "occupy " the premises, the tenant has stated the following: 1. She did not permanently set aside a room for him. 2. Any evidence he stayed with her is only evidence that he was there occasionally and intermittently. 3. Any consent that she gave for him to reside at the premises was due to duress, and any permission was vitiated by a history of domestic violence. 4. She was unable to stop him from coming to the premises and when he did arrive she got out of his way. 5. There is little evidence before the Tribunal of continuity of occupancy.
4. In reaching a conclusion that the tenant's son was an occupant at the premises, the Tribunal has considered the definition of "occupant" set out in Chief Commissioner of State Revenue v Ferrington (GD) [2004]NSWADTAP 41 and cited in NSW Land and Housing Corporation v Catherine McGeown [2014]NSWCATCD 49: "… 'Occupation' means something of a continuity of possession and residency for reasonably lengthy period of time. "Occupation' need not be permanent but mere transitory user is not sufficient: Allison v Lowe [1998] Tas R 21. There must be an element of regularity, continuity and permanence: Baulkham Hills Shire Council v Mekol Pty Ltd 91970) 92 WN (NSW) 553. 'Occupation 'focuses upon what a person does or may do in relation to those premises: Harris v McKenzie 91986) 9 NSWLR 139. In such circumstances, the Appellant submits that 'occupation' requires residency for a period of approximately a few months so that section 12(1) can be relevantly satisfied".
5. The Tribunal is satisfied that at the time of the illegal use of the premises the tenant's son was occupying the premises. The evidence of the tenant is that she hadn't been at the premises the week prior to 17 May 2017, because she was not well and she was staying with her daughter. She also stated that she went to stay with her daughter because her son had come to the premises and she was fearful of him. The tenant's submission state that there was nothing she could say or do to stop her son from coming into the premises and using it as his own. The tenant however does not reasonably explain why it was she returned to the premises on 17 May 2017 if she knew that her son was there and she was fearful of him. The tenant's son told NSW Police that he was living at his father's house; however his father denied to the NSW Police that he was residing with him. In addition the NSW Police found Nicky Fahey's medication on the premises, correspondence addressed to Nicky Fahey at the premises and a pension card addressed to Nicky Fahey at the premises. Further, the NSW Police had a photograph of Nicky Fahey at the premises holding an unauthorised pistol. The tenant has given little particulars of the times that her son would suddenly appear nor has she given any particulars of how long he would stay on each visit. The Tribunal has also considered the NSW Police COPS residential data base which indicates that Nicky Fahey has recorded his address at 1 Stannett Street Waratah West between the period 12 December 2016 and 18 May 2017.
6. The Tribunal is satisfied that Nicky Fahey was in continuity of possession of the premises for a reasonably lengthy period of time and his occupancy was not transitory. The Tribunal is satisfied that the tenant was occupying the premises at the time of the illegal use. The question of whether the tenant gave him permission or whether any consent was given under duress to reside at the premises, does not change the Tribunal's finding that he was occupying the premises. The question of whether the tenant gave him permission goes to the question of any discretion that the Tribunal may have in relation to termination of the tenancy.
7. The tenant has submitted that there is no breach of section 91 as she has not "intentionally or negligently" caused or permitted the use of the premises for any unlawful purpose. Section 91 does not require only the tenant to have intentionally or negligently caused or permitted the use of the premises for an unlawful purpose. It is sufficient for a breach to occur if the person who although not a tenant is occupying has intentionally or negligently caused or permitted the use of the premises for an unlawful purpose. In this case the tenant's son, who although not a tenant was occupying the premises for a continuous period on and around 17 May 2017 was charged with offences that constitute using the premises for an unlawful purpose.
8. The Tribunal is satisfied that the elements of section 91(1)(b) are made out. The Tribunal has not considered the section 91(1) (a) factors, as Nicky Fahey was not charged with any offences under the Drug Misuse and Trafficking Act 1985.
9. The Tribunal is satisfied that the tenant's son has intentionally or recklessly caused or permitted the use of the residential premises for an unlawful purpose.

Does the Tribunal have discretion not to terminate the tenancy?

1. Section 154D requires the Tribunal to make a termination order on the application of a landlord under a social housing tenancy agreement if the tenant, or any person who although not a tenant is occupying or jointly occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises to be used for the purpose of : 1. Storing a firearm for which a license or permit is not held under the Firearms Act 1996.
2. The Tribunal is satisfied that an order under section 91 is satisfied as Nicky Fahey who was occupying the social housing premises, has intentionally or recklessly caused or permitted the social housing premises to be used for the purpose of storing a firearm for which a license or permit is not held under the Firearms Act 1996 (s154D (1) (c) (i) (Fahey was charged with an offence under section 39 of the Firearms Act). Section 154D (3)
3. The Tribunal has a discretion to not terminate the tenancy if the Tribunal is satisfied that the termination order would be likely to result in undue hardship being suffered by a child, a person in whose favour an apprehended violence order could be made or a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977, who is jointly or occupying the social housing premises.
4. The landlord concedes that it is open to the Tribunal to find that the tenant is a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977. However the landlord submits that the termination order is not likely to result in undue hardship being suffered by the tenant.
5. The landlord submits that the Tribunal take into account the following matters in determining not to exercise discretion: 1. the tenant could reside with her daughters; she has lived with her daughters in the past: she has a close relationship with her daughters: they both live in three bedroom town houses. 2. On the tenant's income she could find a 1 bedroom unit in Newcastle. 3. For the purposes of section 154D(3)(b) the Tribunal must find "hardship that is excessive in the circumstances" (Orr v NSW Land and Housing Corporation) 4. The tenant has no control over her son. He does what he wishes. There is nothing to stop him from returning to the property in the future. The tenant has shown an inability to report his actions to the NSW Police 5. The tenant is currently in a periodic tenancy and the landlord is not prohibited from issuing the tenant a 90 day notice to terminate the tenancy.
6. The tenant submits the following factors should be considered in the Tribunal determining whether to exercise discretion. 1. The tenant cannot live with her daughter Ebony, because if the tenancy is terminated, the tenant would be deemed to be an ineligible person, and NSW Land and Housing would not approve her as an occupant. The tenant could only reside with her daughter for a few nights. The tenant is at risk of becoming homeless if the tenancy were terminated. The tenant is unable to reside with any of her other children. 2. The tenant due to her medical health would not be able to reside in shared house arrangements. 3. Any self-contained one bedroom properties in the Newcastle area would leave the tenant with between $72-$92 per week for food, utilities, mobile phone, transport and medication. 4. The Anglicare Rental affordability snapshot, published in April 2017 found that overall only 1% of all rental stock in the Newcastle Hunter region was affordable and appropriate for a single adult in receipt of a Disability Support Pension. 5. Her "need for stability in her housing situation" as expressed by Professor Fletcher (page 61 of Exhibit R1). The impact that termination would have on the tenant's mental health (Dr Furst (page 98 Exhibit R1) and the opinion expressed by Ms D Castles Psychologist (page 77-79 of Exhibit R1). 6. Any consent given by the tenant for her son to reside in the property was by coercion or duress and permission was vitiated by a history of domestic violence. The tenant could not do anything to stop him from coming to the premises and when he did attend, she vacated the property. The tenant did not report her son to the NSW Police because she did afraid of him and did not him to get angry. The tenant did not know that there was a firearm and ammunition in the premises. The tenant did not intentionally or negligently permit her son to engage in illegal activity in the premises. The tenant's son has not been around since May 2017 and she has only seen him on one occasion since that time. If he did return to the premises she would be able to obtain an Apprehended Violence Order against him.

Exercise of Discretion

1. The Tribunal is satisfied that the factors of section 91(b) have been met. The operation of s154D (1) (c) of the Act means that termination of the tenant's social housing tenancy agreement is mandatory unless s154D (3) applies. As stated above, it is not in dispute in the proceedings that the tenant is "a person suffering from a disability within the meaning of the Anti-Discrimination Act 1977. Therefore, the Tribunal could exercise discretion not to terminate the agreement if it were satisfied that the termination order would be likely to result in the tenant suffering undue hardship.
2. The Tribunal declines to exercise discretion in this matter for the following reasons.
3. Section 154D (3) (b) does not define "undue hardship". Nor is that expression defined elsewhere in the Act. The Appeal Panel in Orr v NSW Land and Housing Corporation held: [49] In this appeal there was no dispute that "undue hardship" for the purposes of s 154D (3) (b) means "hardship that is excessive in the circumstances". We agree that such an interpretation is consistent with the ordinary meaning of the phrase. However, the fact that the phrase" undue hardship" in other legislation has been interpreted to mean "hardship out of proportion or fault" does not mean that this is the correct interpretation of the phrase for the purposes of s154D(3) of the Act.
4. The purpose of s154D(3) is to mitigate the harsh consequences of s154(D)(1) for defined categories of people who occupy social housing premises in circumstances where an order for termination would otherwise by mandatory regardless of the degree of fault of the social housing tenant. Again as stated by the Appeal Panel in Orr's Case each of the categories (child, a person with a disability or a person who may be subject to domestic violence) involves a person who may be regarded as less capable than others of dealing with the hardships that may ordinarily arise from the termination of a social housing tenancy.
5. Termination of a social housing tenancy agreement under section 91(1) (b) would be mandatory regardless of the tenant's degree of fault (Orr's Case).
6. The Tribunal has considered the factors set out in section 154E in considering whether to make a termination order and in addition the Tribunal has considered the s 91(2) factors.
7. There is sufficient evidence before the Tribunal to satisfy it that the tenant would suffer hardship if the tenancy were terminated. The Tribunal is satisfied that the tenant has resided in the premises since 2006. The tenant suffers from a number of serious and chronic illnesses and has been in receipt of the Disability Support Pension since 2004.
8. The tenant has given evidence that she is unable to reside with any of her five adult children.
9. The tenant has suffered from a number of personal, physical and emotional difficulties throughout her life, including drug addiction, domestic violence and the death of a child.
10. The Tribunal finds that the tenant would suffer hardship if her tenancy would terminate. However, the Tribunal is not satisfied that the tenant would suffer undue hardship if the tenancy were terminated. The Tribunal is not satisfied on the evidence before it that the tenant would not be able to find alternate accommodation, either with one of her children or in private or affordable housing. The Tribunal is not satisfied that the likelihood of the tenant being rendered homeless would be very high. The Tribunal is not satisfied that the tenant would not be able to reside with one of her daughters (particularly Ebony) if the tenancy were terminated. The Tribunal accepts that this would not be an ideal situation particularly since one of Ebony's children suffers from a disability, however, this would not render the situation impossible. The Tribunal is also not satisfied that if the tenancy were terminated that NSW Land and Housing would not approve the tenant as an occupant in Ebony's home. Evidence was given at the hearing that an application could be made by the tenant to be approved as an additional occupant in social housing premises.
11. The Tribunal is also not satisfied that the tenant would not be able to secure private or affordable housing in the Newcastle area. The Tribunal accepts that there is a dire shortage of affordable rental accommodation for people on low income (Rental Affordability Snapshot: Anglicare Australia April 2017 (Exhibit R1 Tab 5). However, the Tribunal is not satisfied that this would result in the tenant becoming homeless. Little evidence has been provided of the tenant's own enquiries as to finding alternate accommodation in Newcastle.
12. The Tribunal is not satisfied that residing with one of her children or finding alternative accommodation in the Newcastle area would result in hardship that is excessive in the circumstances.
13. Even if the Tribunal is wrong in its finding that the tenant would not suffer undue hardship, the Tribunal declines to exercise discretion pursuant to sections 154E and other factors in not terminating the tenancy.
14. In making this decision the Tribunal has considered the seriousness of an offence under s39 of the Firearms Act and the tenant's inability to control the actions of her son Nicky and her inability or unwillingness to report his behaviour to the NSW Police.
15. On the tenant's own evidence, the Tribunal is satisfied that she has had a difficult relation with her son Nicky. He uses ice and has a history of bipolar disorder. He is not always compliant with his medication. When off his medication, he becomes angry and erratic. The tenant is scared of him when he is in this state. Nicky has had problems with anger and violence since he was young. He has been violent towards the tenant in the past. The tenant never knows when he is going to just show up at her house, on occasion he has even come in through a window or the back door. The tenant asks him to leave, but he usually refuses to leave. The tenant leaves to avoid conflict and violence from him. Whilst she is fearful of her son, she has never called the police about his behaviour towards her, because he is her child and she does not want him in trouble and also because she is afraid of how he would react if she did call the police.
16. The tenant has not had contact with her some for some time, but she does not think he has a stable address. Nicky has only come to the premises once since he was charged with the firearm offences in May 2017.
17. The Tribunal had little direct evidence before it of the effect of the tenancy on neighbouring residents or of adverse effects the landlord's other tenants. However, following the reasoning in NSW Land and Housing v Raglione [2015] NSWCATAP 99, the serious penalties Parliament has proscribed under the Firearms Act, and the fact that section154D (1) (c) (i) identifies storing a firearm for which a license or permit is not held under the Firearms Act 1996 as a mandatory ground for termination, means that such a breach maybe considered to be a serious threat to society.
18. The Tribunal finds that the tenant has little or no control over her son returning to the premises. Even if the Tribunal accepts that he has only been there once since May 2017, the Tribunal does not accept that once these proceedings are finalised that her son will not return to the premises. It maybe that the risk of the tenant losing her tenancy has kept her son away for the past 18 months, however, the Tribunal accepts that Nicky suffers from bi polar and has a history of "ice" use. The Tribunal also accepts that he is not always compliant with his medication. The Tribunal is not satisfied that the tenant has any ability to stop him from attending the premises. The Tribunal is satisfied that the tenant has shown that she is not able nor is she willing to prevent him from attending the premises. She is not willing to report him to NSW Police as she does not want to get him into trouble and she is also afraid of him. The tenant has shown that she has in the past not taken any reasonable steps to prevent her son from engaging in unlawful behaviour at the premises. The Tribunal is satisfied that if the tenancy were not terminated that the tenant's son would return to the premises in the future and this would place an undue risk to neighbouring residents or other persons.
19. The Tribunal is satisfied that the risk posed by the tenant's son returning to the premises and using the premises for an unlawful purpose outweighs any hardship that the tenant may suffer by having the tenancy terminated.
20. The Tribunal is satisfied that the nature of the unlawful use outweighs the tenant's personal circumstances.
21. There was no evidence of any other breach of the tenancy during the period to the tenancy
22. The Tribunal has taken into account the evidence provided by the tenant in relation to her physical and mental health. The Tribunal has considered the medical evidence of Professor Fletcher in respect of the tenant's need to have stability in her housing situation and the opinion of Dr Furst that the effect of termination on the tenant's mental health as well as other evidence provided about the effect of termination on the tenant. The Tribunal has also taken into account the tenant's sworn evidence at the hearing and that of her daughter Ebony. The Tribunal accepts that the tenant has been a victim of domestic violence in the past at the hand of her son Nicky and that she was not present on, or the week prior to 17 May 2017 and that she was not aware of anything in or happening in the premises on 17 May 2017 or the week prior. Nor has the tenant been charged by NSW Police for any offences arising from the search of the premises.
23. The Tribunal is satisfied that the breach is in the circumstances outweighs the tenant's personal circumstances. The Tribunal however does taken into consideration the factors set out in paragraph 57 of this decision in the exercise of discretion in making the date for possession of the premises 1 May 2019.

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: 28 March 2019