An Australian woman who suffered years of violence at the hands of her ex-partner says she is relieved after being given the green light to sue the police for negligence.
Tara Smith and her three children Jasmine, Tegan and Imogen* are suing Victoria Police, alleging the force failed to protect them from physical and mental harm from Smith's ex-partner from 2005 to 2014.
On Monday the Victorian Supreme Court ruled that the lawsuit can go ahead, dismissing an attempt from the police to have it thrown out.
The mother and kids endured repeated family violence incidents over nine years from the ex, who is also the father of the three girls, while living in regional Victoria.
According to the court judgement, the father was generally drunk during the incidents, which included Smith being assaulted, choked and kicked, coerced into sex, verbally threatened, and her house being ransacked, often with some or all of her daughters present.
The father regularly breached intervention orders that had been taken out against him, including one that was made in August 2012 and breached in September 2012 when the father told Smith he was coming around to her house.
"She left," the judgement said. "When she returned, the premises had been extensively damaged. Her belongings, and garbage, were strewn over the bedroom. The house phone had been ripped off the wall and holes had been punched in walls."
Smith called police, who came to the house, investigated, and recorded the incident in the police crime database.
"Smith alleged that she was embarrassed, humiliated and demeaned by the conduct of the investigating detective," the judgement continued.
"Police doubted that the father had committed the crime or could be prosecuted because he had willingly been invited onto the premises from time to time. She was informed that the incident would not be further investigated."
After Smith and her kids moved to Melbourne in 2014, she returned to Ballarat to finish packing up the house, only to find beer cans and the scent of cigarettes and marijuana, leading her to believe the father had been there, the judgement said.
"While she was there the father arrived in an intoxicated state," the judgement said. "He verbally abused her and he damaged the premises. He then drove off [with] her car. Smith contacted the police on 000, then the father returned with the car. She was out in the street. Smith believed, from the way he drove the car, that he intended to run her over."
Smith reported the incident to police, who again recorded it in the database.
"The police who attended the incident negotiated for the father to take a train back to the Latrobe Valley but Smith was required to provide him the money for the train fare," the judgement said.
Smith's case argues that police officers had a duty of care to prevent against breaches of the intervention orders, to prevent family violence from repeat offenders, and for senior officers to ensure police complied with Victorian family violence policies.
Victoria Police tried to get the case struck out before it went to trial, arguing it did not have a duty of care, but on Monday, Supreme Court justice John Dixon ruled the case could go ahead.
"It was devastating to sit in court and hear the state and Victoria Police argue that they had no duty of care or responsibility to either me or my children," Smith said in a statement released by her lawyers at the Flemington & Kensington Community Legal Centre.
"I am so relieved that the decision today means the court will hear the full story, and that other women in similar situations may have options."
Verity Smith, a lawyer at the centre, described the court win as a "vital step" both for Smith and for the law in this area in Australia.
"We hope that this decision opens the door for other women trapped in similar situations," she said.
Dixon wrote that if he agreed to the "extreme measure" of dismissing the case before trial, Smith and her children "would be forever shut out from seeking to prove their claim at trial".
Despite several decisions ruling police do not owe a duty of care to various people in other cases, Dixon said, the law doesn’t positively state that a police officer can never owe a duty of care.
In Smith's case, the facts should be aired and the case determined at trial, he ruled.
* Not their real names. These are court-ordered pseudonyms.