How could the state rely on domestic violence against a social housing tenant in justifying the termination of her lease? Woods v Housing Authority [2025] WASC 482
During last year’s 16 Days in WA campaign, the Minister for Prevention of Family and Domestic Violence said that ‘Family, domestic and sexual violence is not a women’s issue. It must be tackled through a whole of community approach that holds victim-survivors at the centre …’.
Days before the campaign began, the Supreme Court delivered judgment in Woods v Housing Authority [2025] WASC 482.
That decision raises a serious question: How could the state have relied on domestic violence perpetrated against a social housing tenant as something justifying the termination of her lease?
The response – consistent with the very purpose of its 16 Days in WA campaign – must be that the state should not ever attempt to do so again.
Why did the Housing Authority apply for Ms Woods to be evicted?
Over the first year of her social housing tenancy, police attended Ms Woods’ home 54 times, mostly for incidents related to domestic violence or disturbances, or 000 calls that had not been answered.
That led to the Housing Authority applying to the Magistrates Court to terminate Ms Woods’ tenancy agreement under Residential Tenancies Act 1987 s 75A(1)(b) and (c).
The Housing Authority’s case at trial was primarily that Ms Woods had permitted nuisances by the use of her home, or permitted interferences with the reasonable peace, comfort or privacy of residents in the immediate vicinity of her home, which behaviour justified the termination of her tenancy agreement. Apart from one incident, its case was not that Ms Woods had herself caused those nuisances or interferences.
Ms Woods gave unchallenged evidence about the nuisances and interferences. She said her son was violent and threatening towards her and that she had called the police in relation to his conduct ‘quite often’ and ‘all the time’. She said she had tried to manage his behaviour by pursuing drug and alcohol counselling, and encouraging him to return to school.
She had also called the police in relation to her niece and her niece’s partner’s behaviour, and obtained police orders against her niece. Ms Woods said she had told her niece not to come to her home.
Ms Woods also gave evidence about a time when she was on her neighbour’s property calling the police for assistance while hiding from an ex-partner she feared.
The Housing Authority relied on all the nuisances and interferences established before the Magistrate. That included incidents in which Ms Woods had been the victim of domestic violence.
The Magistrate found that ‘police attendance … on many occasions, has actually been at the instigation of Ms Woods … she has sought help and, if anything, she has been the victim of family violence …’.
The Magistrate considered Ms Woods was ‘in any extremely difficult position where she is, herself, a victim of family violence, … is vulnerable and, to some extent, lacking in any power to change or affect the behaviour of other people who are at her property’.
However, the Magistrate went on to find that Ms Woods could have taken further steps, in addition to telling people they were not welcome at her home or that they had to leave. Ms Woods might, the Magistrate implied, have sought restraining orders against her family members or perhaps called the police on more occasions.
The Magistrate found that while Ms Woods wanted to get help for her son and may have had some difficulties in knowing where to go and having the confidence or ability to seek that help, she had been presented with opportunities to take advantage of assistance from various agencies and had done very little in relation to her son’s conduct.
The Magistrate concluded that Ms Woods, aware of the problems, had permitted the interferences. That is, Ms Woods had ‘essentially, allowed for it to continue … because she … failed to use her best endeavours, or to take all reasonable steps to stop it’. Ms Woods ‘… certainly had the power to do more than she did’.
The Magistrate acknowledged that terminating the tenancy agreement would render homeless Ms Woods, her young children, her niece, and her niece’s partner and two young children. That was in circumstances where the waiting list for social housing was ‘extraordinary’. Ms Woods was ‘not of great health’, her financial position was ‘dire’ and she had ‘limited income’.
Nonetheless, the Magistrate made an order terminating Ms Woods’ tenancy agreement.
Why did the Supreme Court overturn the decision?
Justice Howard noted upfront that for the incidents where Ms Woods was a victim of domestic violence, ‘it would seem difficult to say that [she] had permitted that incident of nuisance or interference’.
His Honour upheld Ms Wood’s ground that the Magistrate committed jurisdictional error by failing to identify the particular acts or conduct which were permitted by Ms Woods for the purposes of s 75A(1)(b) or (c), which was necessary to properly consider whether the behaviour justified terminating Ms Wood’s social housing tenancy agreement.
That was because:
- The case at trial had turned on whether Ms Woods had permitted the conduct by omitting to prevent it. The Housing Authority had relied on all acts which were the subject of evidence led as the conduct that Ms Woods had permitted, including the acts of domestic violence against Ms Woods.
- While it is not necessarily possible to categorise all permissive conduct into either giving express permission or giving permission by omission, those are ways in which a person may permit conduct. Indifference or omission is ‘permission’ where a party (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done; (2) has the power to prevent it; (3) makes default in some duty of control or interference arising under the circumstances of the case; and (4) thereby fails to prevent it.
- Section 75A(1)(b) or (c) requires the nuisances or interferences to be sufficiently identified. Without that identification, the Court could not properly consider, as mandated, whether Ms Woods had permitted the nuisances or interferences. Nor could the Court properly consider whether Ms Woods’ behaviour in permitting the nuisances or interferences justified terminating her tenancy agreement. There must be a relationship between the conduct complained of and, in Ms Woods’ case, the asserted omissions to prevent that conduct.
- The Magistrate did not need to identify each act or incident and then determinate whether Ms Woods had permitted that individual nuisance or interference. Depending on the facts, it may well be sufficient to make findings about classes or categories of nuisances and interferences and to then make findings about whether the class or category had been permitted. That might have been apposite where Ms Woods could not control or be taken to have permitted every nuisance or interference, especially some of the domestic violence incidents. Such an approach could be taken if it would provide a sufficient description of the complained of nuisances or interferences so that the relationship between them and the asserted omissions could be assessed.
- The Magistrate did not express in her reasoning a distinction between nuisances and interferences that Ms Woods had or had not permitted. Nor did her Honour express that she only took into account incidents that Ms Woods permitted in assessing whether Ms Woods’ behaviour justified the termination. The Magistrate considered all the incidents of domestic violence in finding that Ms Woods had permitted the nuisances and interferences, and that the termination was justified.
- The Magistrate’s findings that it was unlikely that Ms Woods could have stopped all the (unidentified) behaviour but had power to do more was to the effect that Ms Woods had not permitted all the unidentified and undifferentiated nuisances and interferences. That included domestic violence incidents against Ms Woods in respect of which she had made calls to the police. The Magistrate had otherwise referred to Ms Woods being a victim of family violence and lacking any power to change or effect the behaviour of other people at her home.
- Nuisances or interferences which may have occurred, but which were not relevantly permitted by Ms Woods could not have constituted relevant behaviour of Ms Woods, and so could not form part of the evaluative judgment as to whether her tenancy agreement should be terminated.
- Accordingly, the Magistrate did not approach the task in the way required by s 75A(1), and so committed a jurisdictional error.
Separately, Howard J noted that where Ms Woods had called the police, she could not be said to have permitted the nuisance or interference which had caused the calling of the police, nor which resulted from the calling of the police.
What should Woods mean for the state’s approach in seeking to evict social housing tenants in future?
A court’s reasons, particularly on a judicial review application, usually do not disclose everything that has happened at a trial or in the preparation of a case.
But, even so, it is hard to see how the Housing Authority could ever justifiably set out to rely on acts of domestic violence committed against a social housing tenant as reasons for terminating their lease. To argue that a victim-survivor should have done more to prevent the violence against them disturbing their neighbours is quite the submission to make. It does not represent a ‘whole of community approach that holds victim-survivors at the centre’.
Instead, the question for public authorities ought to be not just whether they could succeed on such an application in that way, but whether they should. That is a question that departmental advocates and government lawyers must also answer for themselves.
As Commissioner Catherine Holmes put it in a different context, the ‘actions of government lawyers take on extra significance because the government is a client which has powers and obligations that far exceed those of the normal citizen’. The same is true of actions of departmental advocates who are given similar privileges to represent the State against its people.
That significance is heightened where the actions of departmental advocates or government lawyers in deciding to pursue, or not to concede, future applications might see victims of domestic violence and their families forced into homelessness.
Put simply, the state and its representatives should not be relying on the consequences of domestic violence in seeking to evict victim-survivors from their social housing.
