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Published: 25 October 2018
Author: Adele White

Woman wins right to sue police over family violence

The Supreme Court of Victoria has granted a woman and her three children the right to sue the State of Victoria for failing to better protect them from family violence.

In August of this year, Justice John Dixon of the Supreme Court of Victoria handed down a judgment which could see the police and by implication, the Government held to account for failing to police intervention orders against the father.

The case will now proceed to trial.

Background - a history of violence

Between 2005 and January 2014, a woman and her three children (who cannot be named for safety reasons) suffered repeated instances of family violence at the hands of the children’s father. The Court heard that over those nine years there were 19 separate instances of family violence perpetrated against the woman and her children at four different locations. Each of the instances was characterised by physical violence, threats to kill and property damage directed at the victims.

Throughout various periods from 29 March 2006 to 1 February 2013, the father was listed as the respondent on four separate family violence intervention orders issued to protect the victims. Despite police awareness about the severity and frequency of the episodes of violence as well as the fact that there were intervention orders in place, the victims were still subjected to numerous instances of violence by the father.

The woman and her three children are now suing the State of Victoria for negligence relating to their failure to adequately intervene to protect them. The claims are being brought against the State pursuant to section 73 of the Victoria Police Act 2010 (Vic) and are known as ‘police tort claims’. If established at trial the State of Victoria will be held liable for negligence because of the actions of Victoria Police officers.

The woman’s argument

The crux of the plaintiff’s legal argument is that various police officers from the Bairnsdale and Ballarat Police Stations were negligent in responding to incidents of family violence such that the plaintiffs were at risk of foreseeable harm. In addition to this, the plaintiffs have asserted to the court that the failure by the police to protect them amounted to a breach of their human rights and a breach of the public authorities’ obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The State of Victoria made an application to the Supreme Court hoping to have the case dismissed before it got to trial stage. If the Court was not willing to dismiss the matter they then asked that the Court strike out the Plaintiff’s claim that they owed a common law duty of care to them.

State’s arguments dismissed

Justice Dixon dismissed the application stating it was not in the interests of justice to dismiss the matter and noting that he was not persuaded by the State of Victoria that no duty of care could be established. The matter will now proceed to trial.

Justice Dixon noted that at trial, determining whether Victoria Police did owe a duty of care to the four plaintiff’s will be determined by close analysis of the facts which underpin the relationship between them and Victoria Police. He said that consideration would also need to be given to the legislative and policy frameworks that related to domestic violence at the time. The full judgment can be viewed here.

Although the Plaintiffs are a long way from success yet, Justice Dixon’s judgment is still a very big step in the right direction. If the matter were to succeed at trial it would be a huge win for victims and survivors of family violence who have been repeatedly let down by police in their responses when called out to incidents.

We know from our experience with many clients of our Family and Relationships Law Department how difficult it can be to relive their traumatic experiences of abuse and so we commend the Plaintiffs for their bravery in pursuing this matter. We will be following this case closely and be posting an update once the trial has been heard and decided on.