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On 9 September 2016 the Federal Circuit Court heard the matter of Manson & Manson [2016] FCCA 3485. In this case, the mother sought orders in relation to the father’s storage of firearms. The father had held a firearms license that entitled him to possession of, and to shoot target pistols. The mother in the proceedings asked the court that they make an order prohibiting the storing of firearms at the father’s residence as she feared the children would be exposed to harm not by the father deliberately but rather as a result of negligence.

Accordingly, the father asked the court to decline to make such an injunction stating that he has had firearms in his possession before but he has not owned a firearm since late 2011. However as per the mother’s affidavit an incident in January 2012 showed that the father had possession of a firearm that was inadvertently fired in front of the children. The father in response to this incident asserted that he wanted to educate the children about the danger of firearms and the importance of treating “a firearm as loaded and to never point a gun at anybody”. This incident caused the mother great concern about the father’s ability to properly care for the children and the father admitted during cross-examination that this was a “stupid mistake”.

The legislation

The question that needed to be determined in this case was whether the court should or should not make an injunctive order against the father as proposed by the mother. The court looked to the Firearms Act 1996 which regulates the usage and possession of firearms in NSW. Section 73 of this act provides for firearms prohibition orders, which permits the Commissioner to revoke a firearm prohibition order at anytime for no stated reason if it is “in the opinion of the Commissioner that the person is not fit in the public interest to have possession of a firearm”. The court also looked to section 40 and 41 of the Firearms Act 1996 which regulate the requirements when storing firearms.

There were no suggestions that the father was in receipt of a prohibition order at that time. Furthermore, the father suggested that he intended to have possession of firearms in the future. The court’s found that an injunctive order as suggested by the mother would interfere with the father’s rights to have a firearm in his possession.

The overriding consideration is the concern of what is in the best interests of the children as pursuant to section 60CC of the Family Law Act 1975. The court was of the view that the “children will not suffer physical or psychological harm through being subjected to or exposed to abuse, neglect or family violence, nor does or will the father lack the capacity to provide for the needs of the children, including their intellectual and emotional needs if the court were to refuse the mother’s application and put in place orders of a different type to prevent the children’s actual exposure to firearms in the father’s household”.

Having had regard to section 60CC the court did not put in place the order as proposed by the mother but otherwise orders which prevented the father from having possession of any firearms unless he held a license that ensured all firearms in his possession were registered, an order asserting that the father store firearms in his possession in accordance with sections 40 and 41 of the Firearms Act 1996 (NSW) and an order to prevent the father from removing from storage any firearm in the presence of the children other than as agreed between the parties in writing.

Therefore, in circumstances of the like the court will determine an outcome on a case-by-case basis, examining the individual features of the case whilst considering the best interests of the child/children as it’s primary concern.