BECKS & SIMMONDS

[2021] FCCA 701

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKS & SIMMONDS [2021] FCCA 701

Catchwords:
FAMILY LAW – Parenting – Application by the mother for parenting orders concerning a child aged 5 – where the father perpetrated severe life-threatening family violence on the mother and a subsequent domestic partner – where the father was in jail serving a sentence for intentionally choking the subsequent domestic partner when the mother commenced proceedings – where the father also has issues with alcohol use and drug use – where the child was present during one of the serious assaults on the subsequent domestic partner – where the father poses a significant risk of harm to domestic partners and to children – where the father failed to file a Response despite being given ample opportunity to do so – order made for the mother to have sole parental responsibility and for the child to live with the mother and spend no time and have no communication with the father – order also made permitting the mother to obtain a passport for the child and travel internationally with her.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant: MS BECKS

Respondent: MR SIMMONDS

File Number: NCC 2963 of 2020

Judgment of: Judge Terry

Hearing date: 18 March 2021

Date of Last Submission: 18 March 2021

Delivered at: Newcastle

Delivered on: 18 March 2021

REPRESENTATION

Solicitors for the Applicant: Law Office of Conrad Curry

Solicitors for the Respondent (given leave to withdraw): Kingston Swift

ORDERS

1. The respondent’s legal representative is granted leave to withdraw from the proceedings.

2. The child X born in 2015 (“the child”) shall live with the mother.

3. The mother shall have sole parental responsibility for the child.

4. The father shall spend no time with and have no communication with the child.

5. Pursuant to section 68B of the Family Law Act 1975 for the protection of the child the father is restrained and an injunction is granted restraining him from removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the child.

6. The mother may apply for a passport for the child and travel internationally with the child or allow the child to travel internationally notwithstanding the consent of the father has not been obtained.

IT IS NOTED that publication of this judgment under the pseudonym Becks & Simmonds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2963 of 2020

MS BECKS

Applicant

And

MR SIMMONDS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter concerns an application for parenting orders in respect of X, who was born in 2015 and who is five years old.

3. The mother filed the application in August 2020 seeking orders that X live with her, that she have sole parental responsibility and that X spend no time with and have no communication with the father. She also sought orders about the issue of a passport and international travel.

4. When the mother commenced the proceedings the father was in jail. He appeared through a solicitor on the 29 September 2020 and an order was made for him to file responding documents. He was not due to be released until the end of December 2020 so he was given until the 29 January 2021 to file those documents.

5. When the matter was mentioned again on 11 February 2021 the father’s solicitor appeared again. The father’s documents had not been filed and the father was given an extension of time to file and the matter was adjourned to today.

6. Today the father’s solicitor sought leave to withdraw and I have given him that leave. The father still has not filed his documents. He was warned on the last occasion that if he did not do so the matter was likely to be finalised today and I intend to finalise it.

7. This matter involves allegations of very serious family violence perpetrated by the father. In her affidavit, the mother alleged that the father was verbally and physically violent to her during her relationship with him, which ran from about early 2011 until they separated in December 2015 when X was about six months old.

8. The mother gave evidence in her affidavit about the father calling her vile names and threatening that he was going to kick her in the stomach because he did not want the baby. She gave evidence about property damage including a hole being punched in a wall and a door kicked in, and she referred to the father picking up her MacBook Air and smashing it over his knee and her head, causing it to break.

9. She referred to a number of other incidents of physical violence including the father hitting her in the face on multiple occasions, pushing her against a wall, and on one occasion grabbing her by the ankles, dragging her out of bed and throwing her down a flight of stairs.

10. She also referred to the father being verbally aggressive and abusive to her son from a previous relationship.

11. The mother said that after separation in the December 2015 the violence continued, and she gave some evidence about that in her affidavit. In late 2018/early 2019 the police applied for an ADVO for the mother’s protection and a final ADVO was made in March 2019 for a period of 2 years.

12. Between separation in December 2015 and an incident in March 2019 involving a subsequent domestic partner of the father’s the mother agreed to X spending time with her father and she spent time with him reasonably regularly. However it was fairly limited and it had never extended beyond one night, and the mother said that she was comfortable about it only because somebody else was there when the father had the child with him: a family member of the father’s or in due course, his new girlfriend, Ms C.

13. However, in March 2019, the mother became aware that the father had physically assaulted Ms C. She ceased X’s time with him, and X has spent no time with him since.

14. Ms C affirmed an affidavit in these proceedings on the mother’s behalf. She detailed some extremely severe family violence perpetrated on her by the father. She said that it commenced six months after her relationship with him commenced. It included the father pushing and shoving her, punching her in the face and body with a closed fist, putting her in a headlock, kicking her to the stomach and legs and choking and strangling her.

15. She referred to an incident in June 2018 when she suffered an injury to her shoulder and was taken to hospital. She said that she was untruthful with the hospital about how she had sustained the injury.

16. She referred to the assault in March 2019 which the mother found out about and which resulted in the time ceasing. She said that this started with the father becoming very angry. There was an argument. There was abuse. Ms C said that she went into a bedroom to pack in order to leave and the father punched her in the face with a closed fist and grabbed her around the neck and was squeezing. He kept yelling out that she was nothing but a cunt and a piece of shit. Ms C was convinced he was trying to choke her.

17. X was in the house during that incident. However after what I have just described, the father left the house with X and took her to a park and the mother was notified and was able to collect X and take her home.

18. Ms C said that after the mother collected X the father came back to the house and again assaulted her leaving her with bruising and scratches, neck pain and a sore and swollen ankle.

19. Police were called and the father was charged with common assault and assault occasioning actual bodily harm and an ADVO was taken out for Ms C’s protection.

20. The father was convicted of the charges and received a Community Corrections Order.

21. In October 2019 the father breached the ADVO and he was incarcerated for six weeks as a result of that.

22. In December 2019 the father seriously assaulted Ms C again. Ms C said that he became enraged and assaulted her by her choking her around the neck with both hands and putting her in a headlock. She said that the choking was so severe that she lost consciousness.

23. Ms C was pregnant at the time and she has since given birth to the father’s child. She said that after she regained consciousness, she went to the neighbours who called an ambulance and she was taken to hospital.

24. The incident was reported to police and the father was charged with intentionally choke and with assault occasioning actual bodily harm. He was sentenced to 12 months imprisonment and it was these offences that he was in jail for when the mother commenced proceedings in August 2020.

25. There is also information in the mother’s material about the father having issues with alcohol consumption and drug use, and so for many reasons the father poses a significant risk of harm to adults and to X.

26. Ms C gave some evidence about the father’s rough handling and mistreatment of X when she spent time with Ms C and the father prior to the time ceasing in March 2019. The father has failed to respond to the mother’s application and I accept the evidence that has been given in that regard.

27. Not only does the father pose a risk of harm to adults and to X, he poses a lethal risk of harm to adults. Ms C could have been killed during some of the assaults on her, and it is quite possible, especially given the mother’s evidence about things like being thrown down the stairs, that she also could have been killed during some of the family violence. The father is a very dangerous man.

28. It is entirely appropriate that I make orders that X live with the mother and spend no time with the father.

29. The mother gave evidence in her affidavit about her care of X and her solicitor sent in a letter today from the child’s day care confirming that they had no concerns about X’s care.

30. The mother has acted protectively of X in bringing this application to the Court and seeking to ensure that in future the father does not spend time with his child. This father represents a danger to this child. She is at risk of witnessing family violence, including potentially lethal family violence, and being injured herself as a result of being present during those incidents or at the very least being seriously psychologically harmed as a result of the father’s behaviour.

31. Hopefully the mother is no longer at risk from the father given that he has moved on, but these are the kind of matters where Court orders do not provide a complete protection for people, and the mother needs to be watchful and protective in relation to her safety and X’s and not just rely on the Court orders to protect her.

32. I am going to settle these reasons so that if the father ever comes back to this Court seeking orders about time with the child, the reasons why these orders have been made will be immediately apparent.

33. The mother sought a passport order. I am going to make that. It is the usual practice of the Court to do so. I have no reason to suppose the mother wants to relocate overseas. Australians like to travel, and it is burdensome for the Court if people have to come to this Court seeking orders about passports when that issues arises at some point in the future.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 13 April 2021