NAYLON & PEATE

[2021] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAYLON & PEATE [2021] FCCA 1207

Catchwords:
FAMILY LAW – Parenting – where the mother seeks an order that the father spend no time with a child aged 4 – where the child has not seen the father since he was 18 months old – where the father was violent to the mother and was also violent to a subsequent domestic partner resulting in him serving a term of imprisonment – where the mother is fearful about the father’s access to firearms – where the father was convicted only two weeks ago of offences which included possessing unauthorised ammunition – where the father has a history of illicit drug use – where the father says that he is trying to make changes in his life but concedes that his application to spend time with the child has no reasonable prospects of success at  present – orders made as sought by the mother.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MS NAYLON

Respondent: MR PEATE

File Number: NCC 3910 of 2020

Judgment of: Judge Terry

Hearing date: 22 April 2021

Date of Last Submission: 22 April 2021

Delivered at: Newcastle

Delivered on: 22 April 2021

REPRESENTATION

Solicitors for the Applicant: NLS Law

Solicitors for the Respondent: Resolve Legal Professionals

ORDERS

1. The mother shall have sole parental responsibility for the child X born in 2017 (“the child”).

2. The child shall live with the mother.

3. The father shall have no contact or communication with the child.

4. Pursuant to section 68B of the Family Law Act, for the protection of the child the father is restrained and an injunction is granted restraining him from:

   (a)Removing the child from any school, day-care, extra-curricular activity or from the care of any person in whose care the mother has placed the child; and

   (b)From attending within 200 metres of the child’s school day-care centre, the child’s residence and any residence that the child may attend from time to time.

5. The mother is permitted to do all acts and things and sign all documents to apply for and retain an Australian travel document, including an Australian passport for the child, without the father’s consent (written or otherwise) and to facilitate this order leave is granted for the mother to provide a copy of these orders to the relevant statutory authority.

6. The mother is permitted to travel internationally with the child notwithstanding the consent of the father has not been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3910 of 2020

MS NAYLON

Applicant

And

MR PEATE

Respondent

REASONS FOR JUDGMENT

Introduction

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 involves parenting arrangements for X who turned 4 in 2021.  He has not seen his father since 2018 when he was about 18 months old. 

3. The mother makes serious allegations of family violence perpetrated by the father both during the relationship and after it ended, and after the relationship ended the father entered into another relationship in which he perpetrated family violence and breached an ADVO and he was sentenced to a term of imprisonment. 

4. The father has a concerning criminal history. The mother is particularly worried about his gun ownership and as recently as 2021 he was sentenced for a raft of offences which included possessing unauthorised ammunition. The mother is right to be concerned about him. 

5. The father has filed an affidavit in which he says that he is remorseful for what has happened.  He says that he is trying to make changes and is either in or is about to finish a course of residential rehabilitation in relation to his drug use, which is another issue. The father also conceded that he had previously had an alcohol problem.

6. The father received an Intensive Corrections Order for the offences of which he was convicted of in 2021 and he says that he is intending to commence the men’s behaviour change program “Taking Responsibility” as soon as a place is available. 

7. I hope the father does that and I hope things go well for him, but as I pointed out to his solicitor earlier, in circumstances where he has not seen the child since the child was 18 months old, where the child would have no memory of him and where the father has a range of issues including drug use, perpetration of family violence on more than one partner and criminality including the possession of unauthorised ammunition, I could not, today, consider making orders even for supervised time. 

8. If the father wants to be reintroduced to the child’s life he needs to have a period of time behind him where he has no convictions and no brushes with the law, where he is able to demonstrate that he has not used illicit drugs for a lengthy period and where he has completed the Taking Responsibility course and has set himself up as a responsible member of the community. 

9. I am going to make the orders the mother proposes and I will settle these reasons. If the father is able to demonstrate that he has changed, and one always hopes that people can and some people do, then the mother needs to understand that he may bring another application in the future. I cannot prevent that.  But the father will have to demonstrate change and if he files an affidavit in the future he will need to attach to it hair test results demonstrating that he is not using drugs, but for moment the matter is finalised.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date: 1 June 2021