Is a woman safe in her own home? No, obviously. But does the law at least apply criminal consequences to an invasion of her home by her ex-partner? The answer, the High Court has decided, is not necessarily.
The facts of the case of BA v The King are these: Kate and Matt (not their real names) moved in together into an apartment in Queanbeyan under a residential tenancy agreement on which they were both named as lessees. Eight months later, they broke up. Matt moved out and Kate stayed on, by agreement. Matt removed most of his possessions in May 2019.
The court described what happened next:
On July 4 2019, the complainant’s mother came to help her pack up the respondent’s remaining possessions, in response to a request from the complainant who had become concerned about threats of violence said to have been made by the respondent. On July 8 2019 at about 6am, the respondent arrived at the apartment. He screamed at the complainant and demanded to be allowed in. When he was not permitted access, he kicked open the door, which was secured by three locks, including a deadlock, and forced it inwards, causing the deadlock to shatter the wooden doorframe. Once inside, he grabbed the complainant by her shoulders, shook her and yelled at her, seized her mobile phone when she endeavoured to make a call, and threw it to the floor.
Matt pleaded not guilty to a charge of breaking and entering. The question that ended up in the High Court was whether it’s possible to commit that offence if you’re not a trespasser — which Matt, because he was still a tenant under the lease, was not. By a four-three split, the High Court said no. Matt was breaking into his own dwelling, therefore in doing so he was not committing any crime. (Although, to be clear, this did not affect his culpability for the assault on Kate.)
The court’s internal argument is a typically arcane debate on the intricacies of a set of legal principles that go back to the 16th century, interesting for legal scholars but divorced from modern social reality. I won’t bore you with it, except to say that there’s a pointed irony in the fact that all the old precedents talk about burglary exclusively from the perspective that it is a man’s home which is his castle.
The key issue here is the difference between possession as a legal right, and occupation as a practical fact.
The majority judges preferred the former as the determinant of the legal quality of Matt’s actions. They noted that “occupation … may be difficult to determine in the context of domestic or family violence, especially where one spouse or family member leaves or is ejected from or locked out of the family home. That person may be either a perpetrator or a victim of domestic or family violence who may seek to return to the family home in a multiplicity of circumstances. Cases of shared households may raise similar problems about whether or not a member or former member of the household is in occupation or habitation, and who has the right to exclude them.”
The judges also pointed out that NSW’s residential tenancy law provides for automatic termination of a lease on the making of a final apprehended violence order. So, you know, if your partner turns violent, get an AVO and he’ll be out.
Personally, I prefer the closing comment of the minority judges:
Nothing seems more apt to risk serious disturbances of social peace and good order and to engender potential violence against people in their own homes than concluding that, in kicking the door down to enter, and then assaulting his former partner (and if he intended to do so, whether or not he in fact assaulted her, as he did in this case), the appellant committed no crime.
But this isn’t just an abstract concern about whether the law might now positively incentivise domestic violence. It creates an urgent, utterly practical crisis.
Kate apparently had concerns about potential violence, which would have been sufficient to take to the police and obtain an interim AVO. That would not have sufficed to entitle her to keep Matt out of the apartment; for that, she’d need a final AVO. If he contested it, she would have had to fight him for a final AVO, which would typically take months and subject her to considerable trauma.
But say the facts fell short of even the threshold for an AVO? Say Kate had broken up with Matt because she felt unsafe with him but couldn’t point to anything evidencing her concern?
Those circumstances would not entitle Kate to get Matt off the lease, or to terminate the lease herself (without incurring a break fee). She’d be stuck with it. The only way to get Matt’s name removed would be with both his and the landlord’s agreement.
What if Kate had a young child (not Matt’s)? Now it’s not just she who would be disentitled from legal safety in her own home, but her child as well. The law, according to the High Court, would stand idly by when Matt turned up and insisted on entry. His purpose would also be irrelevant. Once he was in, if he assaulted Kate or her child, or worse, yes he’d commit a crime. Only the law can unironically offer comfort so cold.
The High Court’s ruling necessitates legislative repair, an urgent question for our state and territory parliaments. In the meantime, the law is that women are not, and should not expect to be, safe in their own homes.
If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.
For counselling, advice and support for men in NSW, Victoria and Tasmania who have anger, relationship or parenting issues, call the Men’s Referral Service on 1300 766 491. Men in WA can contact the Men’s Domestic Violence Helpline on 1800 000 599.
