Peck & Merrett

Case [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Federal Circuit Court of Australia Act1999 (Cth) (repealed) s 39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…

Continue reading Peck & Merrett

Sign in free to access the full text

Details
AGLC
Peck & Merrett [2022] FedCFamC1F 434
Case
[2022] FedCFamC1F 434
Decision Date

CaseChat Overview and Summary

The case of Peck & Merrett involved a dispute between the applicant, born in 1986, and the respondent, born in 1990, regarding the care and custody of their child, who was approximately eight and a half years old at the time of the trial. The respondent had been a victim of significant family violence perpetrated by the applicant throughout their relationship, which began as a de facto relationship in 2011 and continued until their separation in December 2018. The respondent suffered from anxiety and post-traumatic stress disorder (PTSD) as a result of the violence, leading to a mental breakdown in late 2018. During this period, the applicant had primary care of the child, while the respondent was hospitalised or otherwise in ill health.

The legal issues before the court involved determining the appropriate custody arrangement for the child and whether any additional orders should be made in light of the applicant's criminal convictions for family violence against the respondent. The court had to consider the welfare and best interests of the child under section 60CC of the Family Law Act, as well as the additional considerations outlined in section 60CC(3). The court also had to assess the credibility and reliability of the evidence presented by both parties, including the psychological evaluations and expert reports.

The court found that the applicant had perpetrated significant family violence against the respondent, which was corroborated by his guilty pleas to various criminal offences. The court considered the evidence of the family violence and the impact it had on the respondent and the child. The court found that the applicant's conduct was inconsistent with the best interests of the child and that the respondent was the more suitable parent to have primary care of the child. The court made orders for the respondent to have primary care of the child and set out specific arrangements for the applicant's parenting time.

The final orders of the court included provisions for the respondent to have primary care of the child, with the applicant having specified parenting time. The court also made orders for the applicant to attend a rehabilitation program and comply with any further orders made by the court. The court emphasised the importance of protecting the child from exposure to family violence and ensuring that the child's welfare and best interests were paramount in the custody arrangements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 16.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 210.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 3On 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 415.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 516.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)