Peck & Merrett
[2022] FedCFamC1F 434
Federal Circuit and Family Court of Australia
(DIVISION 1)
Peck & Merrett [2022] FedCFamC1F 434
File number(s): MLC 5939 of 2019 Judgment of: HARTNETT J Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – PARENTING –Final consent orders made at trial – Where the only outstanding issue for determination was whether the father be permitted to communicate via zoom or telephone with the child whilst incarcerated – Where consent orders provided for communication via letters and card – Existing family violence orders – Criminal charges and plea of guilty – No order for communication via zoom or telephone. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D
Federal Circuit Court of Australia Act1999 (Cth) (repealed) s 39
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 149
Cases cited: Bell & Nahos [2016] FamCAFC 244
Mulvany & Lane (2009) FLC 93-404
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 30 May 2022 Place: Melbourne Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: Marcou & Associates Pty Ltd Lawyers Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Maloney Anderson Legal Counsel for the Independent Children's Lawyer: Ms McNamee Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 5939 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PECK
Applicant
AND: MS MERRETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
30 May 2022
THE COURT ORDERS, BY CONSENT, THAT:
1.The Respondent mother have sole parental responsibility for the child X born 2013 (the child).
2.The child live with the Mother.
3.The Mother be permitted to relocate the residence of the child to the C Town region of the state of Queensland.
4.The Applicant father communicate with the child:
(a)by way of cards or letters on no more than 2 occasions each month to an address to be provided by the Mother within 7 days hereof by text to the paternal grandmother; and
(b)by way of gifts cards and letters on the child’s birthday, Easter and Christmas.
5.The Mother facilitate the child responding to the Father with cards and letters if the child so wishes.
6.All communication to the child from the Father shall be child focussed and relate to the child and the Mother shall be permitted to withhold any communication if it is not child focussed and/or includes matters not related to the child.
7.The parents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household or discussing these proceedings nor causing or suffering any other person to do so.
8.The parents shall keep each other advised within 7 days of any changes to their mailing address.
9.The Mother notify the Father as soon as practicable of any serious illness or serious injury suffered by the child and provide the Father with the contact details of any treating practitioners and authorise such practitioners to liaise with the Father and this order is deemed to constitute such authority.
10.The Mother provide to the Father copies of all school reports, notices and photographs in relation to the child and she be permitted to redact such documents to remove details identifying any school attended by the child.
11.The Father be and is hereby restrained by injunction from attending any school attended by the child or attending any of the child’s extracurricular activities.
12.The Mother and Father be at liberty to provide a copy of these orders to:
(a)any school attended from time to time by the child;
(b)any treating medical or health practitioner attending upon the child; and
(c)any child protection authority.
13.The appointment of the Independent Children’s Lawyer be discharged.
14.There is leave to the Mother to withdraw her application for property orders as contained in her response filed the 28 June 2019.
15.That otherwise all extant applications including the Application in a Proceeding filed 19 May 2022 are dismissed and the matter removed from the pending cases list.
AND THE COURT NOTES THAT:
A.Whilst the Father consented to order number 4 above, he also sought further communication to be had with the child which was telephone or Zoom communication on a supervised basis to occur each week on a Thursday at 5.30pm or some other suitable time. That order as sought was opposed by the Mother and the ICL. That application was dismissed by the Court. Reasons for judgment in respect of that matter shall be delivered.
B.The Applicant father is presently incarcerated and is not due for release from prison until April 2023 at the earliest. It is the father’s intention, following his release from prison, whenever that is, to make a further application seeking parenting orders in respect of the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peck & Merrett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Preliminary
This proceeding commenced upon the applicant father (“the applicant”) filing an Initiating Application for parenting orders in respect of the parties’ child, X, born in 2013 (“the child”). That application was filed in the Magistrates Court of Victoria on 26 April 2019.
By Response to an Initiating Application, filed by the respondent mother (“the respondent”) on 28 June 2019 in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) at Melbourne, the respondent sought final parenting orders in respect of the parties’ child, together with final property orders. At that time, the respondent sought that the parties have equal shared parental responsibility for the child and for the child to live with the respondent. The respondent also sought, amongst other orders, that she be permitted to relocate with the child to C Town in Queensland.
On 23 November 2020, the proceeding was transferred, pursuant to section 39 of the Federal Circuit Court of Australia Act1999 (Cth) (Repealed) (now s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), to the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) to be listed with such priority as this Court deemed appropriate.
On 19 November 2021, I made orders by consent, including an order to list the proceeding for trial on 5 September 2022.
On 5 April 2022, I made orders vacating the trial date of 5 September 2022 and listed all extant applications for final hearing on 30 May 2022 at 10.00 am for four days. Relevantly, I made further orders which included:
…
6.The father’s spend time with [X], born [in] 2013 (“the child”), pursuant to paragraph 3 of the 18 July 2019 orders is suspended in operation until further order.
7.By 4.00pm on 26 April 2022 the Applicant file and serve upon all other parties:
a) an amended application setting out with precision the orders to be sought;
b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and
c) a financial statement that complies with Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules [2021] (Cth).
8.By 4.00pm on 9 May 2022 the Respondent file and serve upon all other parties:
a) an amended response setting out with precision the orders to be sought;
b) the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and
c) a financial statement that complies with Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules [2021] (Cth).
…
On 28 March 2022, the respondent filed an Amended Response to Initiating Application wherein she sought parenting orders such that she have sole parental responsibility for the child; that the child live with her; and that she be permitted to relocate with the child to C Town in Queensland. The respondent further sought that the applicant have no time spent with the child, save and except as agreed.
The property orders as sought by the respondent included that the de facto husband do all acts and sign all such documents as necessary to sell the property situated at G Street, City N in the State of Victoria and that the sale proceeds of the property be applied to the payment out of the mortgage encumbrance and sale costs. The respondent otherwise sought a division of the net assets of the parties on a 60/40 percentage basis in her favour.
The respondent complied with the procedural orders made 5 April 2022. The applicant did not. He filed no material in accordance with the orders.
On 19 May 2022, the respondent filed an Application in a Proceeding seeking that pursuant to Orders 7, 8 and 19 of the Orders made on 5 April 2022 (as amended on 28 April 2022) the respondent be permitted to proceed on an undefended basis. That application was made returnable to the final hearing date of 30 May 2022.
The applicant opposed the Application in a Proceeding, as did the Independent Children’s Lawyer (“ICL”). The applicant had, by 30 May 2022, filed an affidavit of evidence in chief (on 20 May 2022) and a case summary document filed after hours on 26 May 2022. The Court heard submissions from the parties, and noted the affidavit of evidence in support of the Application by the respondent, but declined to allow the proceeding to proceed on an undefended basis. It had become clear by that time, that there was little factual or other dispute that remained between the parties. What remained was the applicant’s order sought that the child communicate with him weekly by Zoom and/or telephone for a period of time up to 30 minutes under the supervision of one of the respondent’s relatives as detailed hereafter.
Save for the disputed issue as to the applicant’s communication with the child being a regime exceeding that proposed by the respondent and the ICL, there was agreement between the parties. That agreement provided for the applicant to communicate with the child:
a)by way of cards or letters on no more than two occasions each month to an address to be provided by the mother within seven days [of the making of an order to that effect] by text to the paternal grandmother; and
b)by way of gifts, cards and letters on the child’s birthday, Easter and Christmas.
The final orders as sought by the respondent were consented to in their totality by the ICL and by the applicant. However, the applicant further sought the addition of the proposed order as set out at [10] above.
The Court determined that it would not accede to the application of the applicant because the evidence overwhelmingly supported the parenting orders as sought by the respondent and the ICL.
Otherwise, by further Amended Response to Initiating Application, the respondent sought leave to withdraw from the final property orders as sought by her. That leave was granted. The position then became one wherein neither party sought final property orders in this proceeding.
Statements of fact in these reasons are findings of fact on the balance of probabilities.[1] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[2]
[1] Evidence Act 1995 (Cth) s 140
[2] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
Background
The applicant was born in 1986 and, at trial, was 35 years of age. He is in good health. The respondent was born in 1990 and, at trial, was aged 32 years. She is in good health, save she suffers from anxiety and post-traumatic stress disorder (PTSD).
The parties’ child was at trial approximately eight and a half years of age. He attends H School and is in year 3.
The respondent has been the victim of significant family violence perpetrated by the applicant against her over the course of the parties’ relationship, which commenced as a de facto relationship in 2011, and continued thereafter up until the time of the parties’ separation on a final basis in December 2018.
The respondent had a mental breakdown in late 2018 as both a consequence of the applicant’s significant violence toward her as discussed hereafter, and her use of illicit drugs as supplied to her by the applicant during the relationship. That breakdown of the respondent resulted in the applicant having the primary care of the child in late 2018 and early 2019, when the respondent was hospitalised or was otherwise in ill health.
Specifically, on 24 December 2018, the respondent was admitted to the F Hospital mental health facility, and thereafter had several short stays in the mental health facility at F Hospital between that date and March 2019. The respondent had suicidal ideation and attempted suicide. The respondent acknowledges these mental health issues and admissions in late 2018 and early 2019.
Upon the respondent’s recovery, the applicant refused to return the child to her primary care nor permitted her to spend any significant time with him, except on the applicant’s terms of only a few hours per week. The respondent resumed her primary care of the child pursuant to orders made on 18 July 2019.
On 5 November 2018, Victoria Police had issued a Family Violence Safety Notice protecting the respondent and the child. On 12 November 2018, an interim Family Violence Intervention Order (“IVO”), as sought by the police, was made protecting the respondent and the child. On 6 December 2018, a final IVO was granted by consent. It is the respondent’s evidence that the IVO was made by consent without admissions by the applicant. The parties separated shortly after the making of this intervention order. This IVO expired on the 11 November 2019. A further intervention order for the protection of the respondent and child was granted on 21 April 2020.
On 21 January 2019, the applicant made an application for an IVO. An interim order was granted, and subsequently extended on 11 November 2019, with the Magistrates Court noting that the respondent had not been served with the documents; was not at Court; and did not agree to the order.
The applicant was arrested on 12 June 2019 for breaching the 6 December 2018 final IVO protecting the respondent. He was released on bail on 14 June 2019. He was charged with five breaches and one consistent breach of the IVO.
The respondent currently has a final five year protective IVO, against the applicant, which expires on 18 April 2026. The applicant consented to the making of that order without admissions.
Legal Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the legislative framework applicable in this matter. The Court may make such parenting orders as it thinks proper,[3] within the context of the objects of the legislation and principles underlying those objects.[4] Section 60CA of the Act outlines the paramount consideration in determining whether to make a parenting order is the best interests of the child. In reaching a decision, s 60CC(1) of the Act requires the Court to “consider the matters set out in subsections (2) and (3)”, which are described hereafter.
[3] Family Law Act 1975 (Cth) s 65D.
[4] Family Law Act 1975 (Cth) s 60B(2).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
“Family violence” is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Whilst section 60CC(3) sets out the additional considerations that must be considered by the Court, specific reference to each and every one of those considerations is unnecessary in these reasons.[5]
[5] Mulvany &Lane (2009) FLC 93-404 at [77].
Consideration
In the period that intervened between November 2018 and May 2022, a period of approximately three and a half years, there was significant litigation between the parties, including litigation on behalf of the respondent. In the course of that litigation, the respondent made repetitive and numerous allegations of family violence perpetrated against her and the child by the applicant. The applicant, in essence, denied all of those allegations.
In the course of the proceeding, there were psychological evaluations of each of the parties conducted by a single expert psychologist Mr J (“Mr J”). Those evaluations were in evidence before the Court. That evidence was however considered by the parties and the ICL to have little weight in the context of such evaluations preceding the applicant’s plea of guilty to various criminal offences against the respondent to which I shall refer hereafter. Likewise, the Family Report and Addendum Report prepared by Ms L, Family Consultant, fell into the same category. His guilty plea was in stark contrast to the history as provided by the applicant to the expert witnesses.
Accordingly, the parties’ submissions as to the discrete further order as sought by the applicant, principally addressed the charges to which the applicant pleaded, and the summary of statement of offence in respect of those charges as contained in “Exhibit W1” to the affidavit of the respondent, filed 9 February 2022.
Criminal proceedings and family violence
In February 2022, the applicant pleaded guilty to six counts of family violence against the respondent in the Victorian County Court and two counts of breaching an IVO. He was sentenced in March 2022 to two years and two months imprisonment, with a non-parole period of 14 months.
The applicant was also charged with raping the respondent on 5 November 2018. It is the respondent’s evidence that a plea bargain was negotiated, and as a consequence, the rape charge was withdrawn.
The charges to which the applicant pleaded guilty were six indictable offences, being:
·intentionally causing injury;
·common law assault;
·intentionally causing injury;
·intentionally damaging property;
·recklessly causing injury; and
·common law assault.
Additionally, there were two summary offences to which he pleaded guilty, being (a) contravening family violence safety notice, and (b) contravening family violence final IVO.
The incidents relating to those charges were described in the Summary of Prosecution Opening for Trial as follows:[6]
[6] The respondent’s affidavit filed 9 May 2022, Annexure ‘W1’
INDICTABLE CHARGE 1
6.In February 2018, the complainant was in the kitchen of their home using a knife to cut something and the accused was in the lounge room. The accused was angry about something and said to the complainant "don’t you fucking hold a knife up”. The complainant said, “I’m not near you”.
7.The accused then went into the kitchen, took the knife out of the complainant’s hand and started stabbing the benches with it. The accused also threw a microwave, causing it to break; and kicked a kitchen cupboard putting a hole in it. The accused then pushed the complainant into the kitchen wall, putting a hole in the wall with the back of the complainant’s head. The accused was screaming and angry. They ended up in the lounge room and the accused held the knife to the complainant’s throat and said, “don’t you ever hold a knife up to me”.
8. The accused then put both hands around the complainant’s neck causing her to lose consciousness. The complainant ended up on the floor in the lounge room, where she stayed once she passed out. When the complainant was regaining her senses, the accused kicked her to the back of the head causing her heard to fly forward (Charge 1 –Intentionally causing injury). The complainant stated that she was “concussed and out of it from the kick” and that her vision went spotty.
9.The complainant was eventually able to get up and ran to her car which was in the driveway out the front of the house. The complainant locked herself in the car and called her mother. The complainant was in fear for her life and hoped her mum could calm the accused down. While on the phone to her mother, the complainant went back itno the lounge room and gave the phone to the accused who spoke to the complainant’s mother and admitted to kicking the complaint to the back of the head.
INDICTABLE CHARGE 2
10.In August 2018, the complainant came back to [City N] from Queensland. Once she returned, the complainant and the accused were still having relationship problems. The next day after returning, the complainant told the accused that she was going to pack up and leave, which annoyed the accused. The accused started to throw the complainant around the house and pinned her down. Their son was in his bedroom at the time. The accused kept yelling at the complainant, saying she was a crazy bitch and that she ruins everything.
11.The accused then got dressed and took [X] out to his ute as he was going to take him to the circus. The complainant got into the driver’s seat of the ute with the intention of locking the accused out, but he stopped her from closing the door. The complainant was grabbing onto the steering wheel, and the accused pulled the complainant out of the ute.
12.The complainant was laying on the grass sobbing, and the accused stomped on her legs (Charge 2 – Common Assault). The complainant moved along the ground to the front of the ute, and the accused stomped her leg again, near the thigh. The complainant then rolled over, and the accused stomped on her other leg. The accused then got on the ground with the complainant and put both hands around her neck, choking her. The accused eventually let go of the complainant, and she rolled onto her front, trying to get away.
13.The accused then hit the complainant to the back of the head, and then there was constant pressure pushing her face down into the ground. The accused was yelling at the complainant that she does not stay down and that she was a “stupid bitch”.
14.The accused eventually stopped and got into the ute. The complainant was still on the ground, and the accused started driving toward her like he was going to run her over. The accused stopped just before hitting the complainant, then reversed and left the house.
INDICTABLE CHARGE 3
On the 13th of October 2018, the complainant was at her home address with the accused and their son. The accused assaulted the complainant and choked her, causing her to lose consciousness (Charge 3 – Causing Injury Intentionally). While the accused was choking the complainant, the complainant started a video/audio recording on her mobile phone. In the recording, the complainant can be heard saying “don’t”, “stop” and “choking me”, and their son can be heard talking in the background at the end of the recording.
INDICTABLE CHARGE 4
15.On the 29th of October 2018, the accused kicked the doors of the complainant’s car, denting the doors on the side of the vehicle (Charge 4 – Damaging Property). …
INDICTABLE CHARGE 5
16.On the 5th of November 2018, at about 7am or 8am, the complainant was getting a cigarette out of the accused’s ute and saw the accused watching her from the kitchen window. The complainant went back to the house and the accused confronted her.
17.The accused threatened to take [X] away and the complainant told him not to wake their son up. The accused and complaint started pushing back and forth. The accused then pinned the complainant against a bookshelf by the neck using both hands. The accused let go and they started arguing again. They ended up in the lounge room and the complainant pushed the accused so he threw her into a coffee table causing swelling to the complainant’s foot (Charge 5 – Causing Injury Recklessly; Assault). The complainant rolled onto the ground and picked up a children’s toy. The accused came down onto the ground on top of the complainant and she hit him to the back of the head with the toy.
18.The accused pulled the complainant up and was holding her arms and shaking her while yelling at her. The accused then said he was going to call his mum and the complainant sat on the couch for a short time before she went into the bedroom with [X].
19.A short time later, the accused’s parent [Ms B] and [Mr B] attended the house. They stayed for a short time then left and the complainant called her mother who asked for the address and said that she was going to call police.
20.The complainant then went to have a shower and noticed that her foot was swollen and she was sore all over. The complainant took photographs of some injuries she had.
21.When the complainant got into the shower, she was standing on one leg because her foot was sore and swollen. The complainant was leaning with one hand on the wall and her whole body was sore.
22.Later that day they continued arguing and pushing each other. The accused the complainant into the bench top then went to go outside for a cigarette. When he went outside, the complainant went to lock the accused out of the house but he pushed the door back at her. The accused then grabbed the complainant by the singlet and pulled her toward him then pushed her back (Charge 6 – Common Assault). This caused the complainant’s top to break. The complainant ended up on the ground sobbing. The accused then got changed and left the house.
23.Police arrived a short time later and subsequently applied for a Family Violence Safety Notice to protect the complainant from the accused. The Family Violence Safety Notice was served on the accused at 3.50PM on the 5th of November 2018 by Leading Senior Constable…
(Emphasis in Original)
The respondent maintained throughout the proceeding that she had been the victim of extensive and severe family violence at the hands of the applicant. Further, that much of that violence was witnessed by the parties’ child. During the course of the proceeding, the applicant had, at one time, the primary care of the child, and at other times orders in his favour wherein the child would spend each alternate weekend with him. The respondent throughout considered the applicant a dangerous man and poor role model for the child, but asserted that she felt compelled to agree to orders as to the child spending time with the applicant because of “the terrible state he put me in at the time, and it seemed that no one believed me about him”.[7]
[7] The respondent’s affidavit filed 9 May 2022, at [8].
In her affidavit evidence, the respondent deposed to the family violence suffered by her and, in particular, that suffered by her following the birth of the child. That violence included violence directed by the applicant toward the child. In particular, the respondent’s sworn affidavit evidence was relevantly as follows:[8]
[8] The respondent’s affidavit filed 9 May 2022.
41.When [X] was a couple of months old, he had a temperature of 40 degrees. I hopped in my car with [X] to take him to the hospital. The father said, "let me finish my fucking food I'm hungry and been at work." I said words to the effect of eat it in the car. The father said, "no just fucking wait." I started driving out the driveway when I heard a thud and the father's KFC burger was splatted on my back window. I wound my window down and called him a "dumb arse." That pissed him off more so he threw a soft drink and chips at my car. I left and took [X] to the hospital alone. The father over the years has regularly thrown food at me or the wall and furniture.
42.The father's violence escalated towards me and in about 2014 when he began to choke, kick, and punch me and hold knives to my throat.
43.On or around early 2014, the father and I attended a car yard so that I could buy my own car. The father became angry and started yelling and swearing at me in front of [X] and the salespeople. He then drove off and returned and swore at me some more.
44.In or about early 2014, the father and I were in a car together and the father got angry at another driver. The father pulled out a firearm threatening the driver. [X] was in the car with us. I recall other incidents where the father has thrown items at other cars and tailgated them. He would follow cars and once the other vehicle was parked, the father would go over and key the vehicle.
45.Sometime in 2014 the father and I were arguing and he began screaming at me and pulled out a machete. [X] was present and began to cry. This did not stop the father.
46.In late 2014 the father and I were separated and I was living in my own house. The air conditioner had stopped working and I went outside to check it. I realised that the father was there and had turned it off from the outside. When I re-entered the house, the father followed me and began to punch and choke me. The father got a chair and a tarp and was trying to force me onto the chair and threatened to kill me. I had genuine fears that he would kill me that night. I have set out more detail about this in my police statement of the incident annexed hereto. [X] was in my bedroom during this incident.
47.In or about late 2015, the father came to my house and we argued in the lounge room. [X] was present. The father was choking me and I remember looking at [X] and trying to be brave so that he would not be scared. I did not report this incident to police at the time but subsequently did so in 2019.
48.A similar incident occurred in about early 2016. The father came over to my house and he was very angry. He wanted to take my DVD player and other items. I had [X] in my arms and was standing next to a sliding glass door. I said the wrong thing and the father pushed me against the door and held me by my throat and said he was going to kill me. The father then pushed me very hard and I hit my head on the door. [X] was still in my arms. The father then threw a muffin at me but missed and it skimmed past [X's] head. I reported this incident to police.
49.During 2017, the choking incidents became more regular and would often occur in front of [X] or whilst [X] was in the house. On occasions the father would use a knife to scare me. On occasion [X] would get upset at what the father was doing to me and I would tell [X] that the father and I were just playing karate. I did not want [X] to be fearful but could see that he was scared.
50.The father's drug use (ICE) got bad towards the end of 2018. I was worried and told his mum about this. She said words to the effect of not to worry and it is probably not that bad. The father would stay in his shed for hours and hours and when I walked in, I would find him pulling himself to porn and photos. He would walk around the house with a knife and other weapons. The father would also do renovations on the house at 2.00am while [X] and I were trying to sleep.
51.The father slapped [X] hard in the back of his head in or about 2018. [X] has had one smack from me on the hand in five years and it was small. I do not believe in smacking. The father has smacked [X] a few times which caused the father and I to argue. The father has called me a "dog cunt" and thrown stuff at me during these arguments in the presence of [X].
52.In 2018 the father, [X] and I were travelling in a car and we were arguing about something when the father started choking me whilst he was driving. [X] began to cry. The father got angrier because [X] was crying and punched me in the arm calling me a "fucking dog."
53.In March 2018, I was assisted by the [K Health Service] to relocate to be with my family in Queensland. I was working at [E Company] and got a job transfer to [a local branch]. I told that father that I would be coming back soon but it was not my intention to do so at the time. I had had enough of the violence and my family were extremely concerned for my and [X's] safety.
…
55.On or about 17 August 2018, the father, [X], and I were going to go to the circus. We had an argument and the father ripped my shirt off and choked me. The father attempted to leave with [X] and I got into his car to stop him. The father pulled me out of the car and threw me on the ground and kicked me repeatedly. The Father then attempted to run me over whilst I was on the ground. He left with [X] who was in the car and witnessed the incident. This was a breach of the IVO and I reported this incident to police.
56.In or about November 2018, the Father attended at my house and threw me against the walls a few times. He also choked and kicked me in the head repeatedly. I think I may have lost consciousness but can recall the father standing over me holding a knife to my throat. [X] was in the house at the time. I called my mother and she spoke to the father. He admitted to my mother that he had kicked me in the head. He then left. My mother reported this incident to police. I spoke with police on the phone and told them I was fine. I was too scared to say anything. The father returned, we argued further, and he left again. The police arrived at my home and saw my injuries. As a consequence, an application was made for an IVO by police protecting [X] and me. The father agreed to the IVO by consent and without admission. This was not a full order. The father and I were still able to contact and communicate with each other.
57.On or about 4 December 2018, the father and I had an argument. The father attempted to leave with [X]. I refused to let him take [X] and the father called his parents who attended at the house. The paternal grandfather was yelling and swearing at me and threatened to shoot me. The father left with his parents. The father returned later on and started to kick and choke me before leaving again. This was a breach of the IVO and I reported this incident to police.
…
61.I was told many times by the father if I ever left him, he would kill me. He also told me that if I got with anyone else, he would kill the man then me. The paternal grandfather, [Mr B], has told me many times he will shoot me or kill me if I cause any trouble.
62.The father has come to places I worked at and threatened to hurt and kill people. He was banned from coming to a [business] where I worked. When I worked at a [retail] shop the father slashed my manager's car tyres. The father would constantly drive past my places of employment to check on me.
63.The father has keyed my car a couple of times over the years when I started dating someone else or he was just pissed off. He has also let my tyres down or hidden my keys so I could not leave him.
64.The father has emptied rubbish bins over my car and onto the street, stolen my mail and thrown my mail on the street.
65.Even when we were having periods of separation, if I did not give the father a set of keys to my home he would break in and trash the place. The father would attend at my house without notice or invitation and let himself in. He would simply move his things into the house and I was helpless to get him to go.
All of the above evidence of the respondent is accepted by the Court.
The respondent’s further evidence was that the applicant and paternal grandmother had told the child “horrible lies” about her. These lies have included that the respondent is a criminal; that she has broken his toys; and that the child should not tell the respondent that he loves her or show any affection to her.[9] The respondent further deposed in her evidence that the applicant had called her family many times and abused them.[10]
[9] The respondent’s affidavit filed 9 May 2022, at [98].
[10] The respondent’s affidavit filed 9 May 2022, at [99].
Despite the above evidence, which is accepted by the Court, the applicant proposed as supervisors of his communication time with the child, that those supervisors be any one of the maternal grandparents and/or the respondent’s two brothers, all of whom reside in harmony in the one household in Queensland. These persons had not been asked by the applicant whether they would be prepared to supervise any telephone communication between the child and him. Ample time had passed for the applicant to make such an approach to them. Given the perpetration of violence by the applicant upon one of their family members (being the respondent) and given the history as described in the affidavit material of the respondent, it is highly unlikely, indeed not probable that any one of those persons would be prepared to assist the applicant in spending time with the child by telephone or zoom call. In particular, where that time will impact adversely upon the respondent, who remains very fragile as a result of the violence perpetrated upon her by the applicant. As submitted by counsel for the ICL, even supervised time between the applicant and child will impact adversely upon the physical and mental health of the respondent. I accept that this will in turn adversely impact the child and find it will not be in his best interests.
The respondent has provided for the majority of the child’s needs since birth, save for when she was mentally unable to do so. She is child-focused, and the child is very dependent upon her to fulfil all of his needs; emotional, intellectual, financial, and physical, in the absence of any ability of the applicant to fulfil any of the child’s needs. The respondent’s responsible, reliable and loving parenting capacity should not be interfered with in any way, nor adversely impacted by the making of an order as sought by the applicant.
Additionally, there is the impact of the applicant’s violent acts upon the child himself. The respondent’s evidence as to the impact of this family violence upon the child is that:[11]
…[X] has suffered emotionally as a result of what he has witnessed and endured, both when the father and I were in a relationship and after separation. He is still having trauma counselling with [Mr M].
[11] The respondent’s affidavit filed 9 May 2022, at [133].
It is common ground that the child knows the applicant has been incarcerated. The respondent is fearful for her safety and that of the child in City N. As a result of the differing litigation processes she has been through with the applicant, the respondent has endured many years of the applicant denying what he now admits, namely the committing of acts of significant family violence upon the respondent. Over many years the respondent considered her factual statement of events not believed. The submissions of the ICL, which are accepted by the Court, went to the need to protect the respondent and her capacity to parent, by dismissing the application of the applicant. In the ICL’s submissions, the applicant requires serious long-term assistance to change his violent behaviours. I agree.
The respondent deposes in her affidavit evidence that she has noticed positive changes in the child with the absence of the applicant in his life.[12] She says:
…He is a lot less anxious. He is aware that his father is in prison and has had counselling about this. [X] has not asked to call the father or see him, and I do not believe that it is in his best interests to do so. He recalls the violence the father perpetrated against me and understands that is the reason he is in prison. I have told him that the father is able to do classes in prison to help him and he accepts that is a positive thing. He has even told his friends at school that his “Dad is in jail doing art classes.”
[12] The respondent’s affidavit filed 9 May 2022, at [134].
It is clear that there is a need to protect the child from any denigration of the respondent and inappropriate conversations had with him by the applicant. Supervision is not sufficient in the circumstances of this case, even if any supervisor were to be available and willing to take on such a role.
The child suffers from dyslexia, PTSD, and anxiety. He will relocate with the respondent to Queensland to be in the vicinity of, and be supported by, the maternal extended family. The applicant will remain in jail until at least early 2023. The child will have an opportunity to exist in a beneficial (to him) environment being one which is safe and free from conflict, which best promotes his interests as he recovers from the past traumas of his mother and himself.
For the above reasons the applicant’s application is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 17 June 2022
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