Mother Not Granted Injunction Restraining Father From Storing Firearms

Background

 In the recent case of Manson [2016] FCCA 3485 (delivered 9 September 2016, but published 22 May 2017) Judge Myers heard a case where parents of two children had agreed on parenting issues except for one relating to firearms.

Mother’s Submission

 The mother sought an order restraining the father from storing firearms at his residence, fearing that the children would come to accidental harm, obviously contrary to their best interests.

Father’s Submission

The father opposed any such restraint. He held a license to possess and shoot target pistols. He owned a pellet pistol and a target pistol but had not owned a firearm since 2011. He stated that he intended to own firearms in the future. Further, he stated that he was a licensed shooting range officer.

 

Allegations Against the Father

 The mother alleged that Child X stated that the father was showing him how to use a gun. Child X did not know that the gun was loaded and it went off in his hand. He shot a hole in the wall.

In relation to the mother’s allegations, the father suggested that what had taken place was something similar, but different to that described by the mother, whereby the father had noticed X had been pointing a toy gun at him. The father decided that he wanted to teach X about firearm safety. The father agreed during cross-examination he had shown X his air-powered pistol. The father deposed that he gave X a lesson on firearm safety and said to X words to the effect, “You must always treat a firearm as loaded and never point a gun at anybody.”

The father stated in his affidavit that he “used an air-powered pistol and discharged a felt pellet into a plaster wall. The pellet made a 3-millimetre dent in the plaster wall’.

The father also conceded during cross-examination the felt pellet had been inadvertently left in the pistol after cleaning and that the pistol was designed to shoot metal pellets. In effect, the father accidentally shot the felt cleaning pellet into the plasterboard wall.

 

Analysis of the Case  

The possession and usage of firearms is regulated in New South Wales by the Firearms Act 1996. Sections 7 and 7A of the Firearms Act 1996 prescribe that firearms may only be used in connection with the purpose established by the person as being a genuine reason for possession or using the firearm.

Section 33 of the Firearms Act 1996 provides that the Commissioner of Police is to maintain a register of all individual firearms in New South Wales. Section 73 of the Firearms Act 1996 provides firearms prohibition orders.

The Commission may make a firearm prohibition order against a person if, in the opinion of the Commissioner, the person is not fit in the public interest to have possession of a firearm. A firearm prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made. The Commissioner may revoke a firearm prohibition order at any time for no stated reason.

The storage of firearms is governed in New South Wales pursuant to Section 40 and 41 of the Firearms Act 1996. Section 42 provides for the seizer of firearms if storage is not met. A police officer must seize any firearms or ammunition if the officer has reasonable grounds to believe it is not being kept in accordance with the Act.

There was no suggestion that a firearms prohibition order has been made against the father. The father expressed his desire to own firearms in the future. The father suggested during the hearing that he would be prepared to be bound by an order that prevented him removing a firearm from storage in the presence of the children. An injunctive order suggested by the mother was one that would interfere with the husband’s rights to have a firearm in his possession, locked in storage in accordance with storage requirements set out in the Firearms Act 1996 at his premises.

The court considered section 60CC of the Family Law Act 1975 when determining what is in the best interests of the children. The father accepted in cross-examination it was a stupid mistake to show X the pistol and a mistake that it discharged.

According to the Court, it must be careful to apply the law in proceedings such as these as opposed to determining a matter based upon personal views or preference. Some in society find the use of firearms abhorrent. For others in society, according to the Court, such as those living on the land, firearms are in many cases what might be regarded as a matter of necessity. Some people hunt and others do not. The issue around firearms is one of a matter of personal view or preference.

Judge Myers stated that while the father did mistakenly discharge a cleaning pellet into the wall, which was a regretful incident, it is the view of the Court that the children would not suffer physical or psychological harm. Additionally, that the father did not lack the capacity to provide for the needs of the children, including their intellectual and emotional needs. Judge Myers refused the mother’s application and decided to put in place orders that would prevent the children’s actual exposure to firearms in the father’s household.

The orders were made to remind the father of his legal obligations and, secondly, to mitigate against the children being exposed to firearms in a manner that does not prevent the father owning or storing firearms.

 

Orders of the Court

The orders made by the Court were that:

  1. The father shall not keep upon his premises at which the children spend time, any firearm unless he holds a license entitling him to possess that firearm.
  2. The father shall cause all firearms in his possession to be registered in accordance with the Firearms Act 1996.
  3. The father shall ensure that all firearms the father has in his possession at premises at which the children spend time shall be stored in accordance with sections 40 and 41 of the Firearms Act 1996.
  4. The father shall not remove from storage any firearm in the presence of the children other than as agreed between the parties in writing.

Leave a Reply