A Victorian court will decide whether the police were negligent in failing to protect a woman and her three children from nearly a decade of abuse, in what the woman’s lawyers say will be a landmark test case.

On Monday, Victoria’s supreme court rejected a bid from the State of Victoria to have the lawsuit dismissed.

Court documents say the woman, Tara Smith, which is a pseudonym ordered by the court, and her children, known as Jasmine, Tegan and Imogen, suffered many instances of family violence at the hands of the children’s biological father between 2005 and 2014. The children identify as Indigenous.

The plaintiffs allege that police failed in their duty of care to protect them from physical and psychological harm. According to the court judgment, this included the father allegedly kicking and choking Smith, verbally abusing her, ransacking her home, and coercing her into sex to avoid further acts of violence.

The father was subject to a number of intervention orders between 2006 and 2013. The initial order was granted after a family violence incident in which the father was “extremely intoxicated”.

Later in 2006, a police officer who was aware that the intervention order was in place, dropped off the father 140 metres outside Smith’s home with the expectation he would walk the remaining distance, court documents allege.

“On a second occasion soon after, police dropped the father while intoxicated at the plaintiffs’ residence where he committed family violence against Smith in the presence of Jasmine,” the judgment said.

In another incident in 2008, the father again “committed family violence” against Smith while he was intoxicated. When Smith called police, it is alleged there was no “substantive response”.

In a separate incident in 2012 the father contacted Smith to tell her he was coming to her house, which prompted her to leave. She returned to find her belongings and garbage strewn over the bedroom, the house phone ripped off the wall and holes punched in the wall.

The incident was reported to the police, who recorded it in a police database. But “Smith alleged that she was embarrassed, humiliated and demeaned by the conduct of the investigating detective,” the documents added.

“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.”



By 2014, another incident took place in which the father drove an accelerated car at Smith while she was standing outside her home. The police were called, and they negotiated with 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 documents said.

In attempting to have the case thrown out, the State of Victoria “disputed the existence of the alleged duties of care”.

But Justice John Dixon disagreed, saying striking out the case would be an “extreme measure”.

“The defendant has not persuaded me that no duty of care could arise on the assumed facts,” he said in his judgment.

“Rather, I am persuaded that the issue must be determined once the facts have been established at trial.”

The woman’s lawyer, Verity Smith from the Flemington Kensington Community Legal Centre, said that the state’s defence had been “crushing for women experiencing this violence”.

Tara Smith said in a statement released by her lawyers that she was relieved the court would hear her full story.

“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,” she said.