KANGAROO COURT OF AUSTRALIA

Jackson v Jackson

[2004] KCA 2

MISOGNUS J: The female applicant has developed something of an obsessive attitude in relation to her estranged husband with the result that the present proceedings have come about. The issue at hand is that the applicant is convinced that her ex-husband is likely to inflict serious injury upon herself or her property and has formed the conclusion that an Apprehended Violence Order is necessary for her own preservation.

The applicant and her former husband were married in August 2001 and were together until June 2003, when the applicant initiated a separation. It seems that the husband did not take this particularly well and thereupon commenced to make a nuisance of himself by constantly telephoning the applicant, loitering outside her workplace and arranging for pizzas to be delivered to her home. It will be observed that this conduct, although certainly annoying, was hardly of a life threatening nature and not of the kind one might expect to be associated with an Apprehended Violence Order. It is true that on two or three occasions the husband punched the applicant but this was an understandable lapse in behaviour and at any rate the husband apologised after each occasion and little significance can be attached to this.

Be that as it may, the applicant now has some kind of fixation with her ex-husband and now believes that her future happiness is conditional upon this court granting an order restraining her husband from going anywhere near her. Meanwhile, the husband has taken steps to make amends with his former wife. He has ceased to send pizzas. He has promised not to punch her. In short, he has done everything within his power to show that he is a reformed man. But this is not enough for the applicant. Nothing will satisfy her other than a court order banishing the husband from her life altogether.

I must say that I am surprised that a marriage between such ill-matched individuals was ever suffered to take place. It is obvious to me that the pair were incompatible and had nothing in common other than perhaps a mutual desire not to grow old in the entrenched state of loneliness and social isolation which now without doubt awaits both of them. That is not to the point. The point is that the marriage was a farce and ought not to have been allowed. However, that is all in the past and the fact remains that it has taken place and we must reckon with the consequences.

The question of whether a protection order should be issued turns essentially on the facts of each particular case. This Court is required to assess the available evidence and determine the likelihood of the applicant suffering harm in the event of the order not being granted. I have done this. In evaluating the evidence, I have directed myself to take a clear and impartial perspective. I have reminded myself that the fact that the applicant is female does not necessarily indicate that she has fabricated or exaggerated her evidence. I have given anxious consideration to the potential for the applicant to be exposed to danger. After all this, I am unable to conclude that sufficient evidence exists to justify the grant of the order.

I am fortified in my conclusion by an additional consideration. It is not outside the realm of possibility that the applicant may at some point in future reconcile herself with her husband. If this Court were to grant a protection order today, that order would have the effect of frustrating and delaying the reconciliation process. Legal advice would have to be sought as to the effect of recommencing a relationship while an order is in force. This would be extremely disruptive. As Lord Benny said in Nairn v Nairn, horny folk want sex, not legal exposition. It is neither in the interests of the applicant or her husband that such a barrier to reconciliation be established.

For the foregoing reasons, the application is refused.

With this seal it is hereby certified that the above paragraphs are a true record of the reasons for judgment given by the Hon. Justice Misognus.

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