Joff and Joff

[2017] FCCA 3063

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOFF & JOFF [2017] FCCA 3063

Catchwords:
FAMILY LAW – Ex tempore ruling on application for summary dismissal of father’s parenting orders application.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), r.13.10

Dey v Victorian Railways Commissions (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60

Applicant: MR JOFF

Respondent: MS JOFF

File Number: DGC 1594 of 2012

Judgment of: Judge Burchardt

Hearing date: 4 December 2017

Date of Last Submission: 4 December 2017

Delivered at: Dandenong

Delivered on: 4 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Radich

Solicitors for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Ms Bonney

Solicitors for the Respondent: Women’s Legal Service Victoria

Counsel for the Independent Children’s Lawyer: Ms Nicholls

Solicitors for the Independent Children’s Lawyer: Dandenong Family Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The children, X (b (omitted) 2000), Y (b (omitted) 2003) and Z (b (omitted) 2007) (“the children”) live with the mother.

3. The mother have sole parental responsibility for the children.

4. The father have no communication with the children.

5. The father not spend any time with the children.

6. The mother have leave to provide a copy of the Family Report by Ms J dated 22 November 2017 to the Victoria Police, a legal representative in relation to obtaining a intervention order against the father and/or a Magistrate in relation to making an application for an intervention order against the father.

7. The father be restrained from filing any further application for parenting orders in relation to the children without first obtaining the leave of the court.

8. The Independent Children’s Lawyer be discharged.

9. The application of the father filed on 16/12/2016 be otherwise dismissed.

10. Usual section 65DA(2) and 62B orders.

11. Certify for advocacy.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1594 of 2012

MR JOFF

Applicant

And

MS JOFF

Respondent

REASONS FOR JUDGMENT

1. This is an application for summary dismissal of the father’s case.  It is perhaps appropriate to start with a paraphrase of the submissions made at court.  Counsel for the mother seeks orders in terms of most recent family report provided by Ms J.  She refers to the orders made by Judge Hughes in 2013, to which I shall return.  She noted that the Independent Children’s Lawyer has recently interviewed the children with whom we are concerned, and their views have not changed.  Indeed, they were thoroughly fed up with the process of being interviewed, according to counsel.  The application is pressed under rule 13.10 of the Court’s rules.  It was submitted that, given the matters in the family report, even listing the matter for trial would be a risk of harm to the children, as the proceedings are harmful to the children in a general way.

2. Ms Nicholls, the Independent Children’s Lawyer, confirms that she has met the children. Z, the youngest, has no memory of his father.  The others were firm in not wanting a relationship with him. 

3. Counsel for the father indicated the father seeks that there be a final hearing of the matter, noting that the family report had recently been released.  An application had been brought after the mother had experienced mental health difficulties.  The father has not, save for one occasion arranged by the Department of Health and Human Services, seen the children for more than five years.  It was noted that affection was shown by the father in 2014, when he met the children.  The father has been engaged with psychologists since 2013 and has had some 30 sessions.  He has also undertaken three anger management courses and two post-separation parenting courses.

4. This matter has a long history.  The very first file goes back as far as 2001, although there seems to have been a hiatus until about 2011.  There have been a number of family reports.  On 23 July 2013, Judge Hughes made orders which, effectively, all but excised the father from the children’s lives.  She gave a strong ex tempore judgment based on a strong family report.  Further proceedings then took place, which were culminated by orders made by Judge Curtain on 1 October 2014.  They are not presently of any moment.

5. The next matter to occur was the father’s application on 14 December 2016, and it is that application in respect of which the respondent mother seeks summary judgment.  I note that in his supporting affidavit, filed contemporaneously with the application, the father expresses very considerable and significant regret for his past behaviour, including an occasion when, as he puts it, he lost his temper in court, and he felt he was punished as a result.  The children have been living with their mother, following Children’s Court intervention.  I note that there was a visit arranged by the Department in 2016.  Otherwise, the children have not seen him since 29 July 2012, if I understand the matter correctly.  I may not be quite correct as to the date of the particular visit.

6. Against that background, I come to the recent report of Ms J, and I would point out that, although this report is of recent moment, no application has been made for an adjournment to have an interim hearing, despite the application for summary judgment having been made.  Rather, the father’s position is that he seeks a trial.  In other words, there is no objection to my hearing and determining the summary judgment application today.  On a forensic footing, in my respectful view, that is probably a sound judgment by those advising him.

7. I have regard to all the matters in the family report.  I am only going to read out some small sections of it.  In paragraph 73, the report writer said this:

   There is a great deal of material about the history of this matter but the most compelling evidence is the Final Court Order made on 23 July 2013.  In this Order, Mr Joff was given an opportunity to seek help to make positive change.  Four years later, it is clear that Mr Joff does not acknowledge his violent behaviour and has taken no responsibility for his past violence perpetrated on Ms Joff and the four children.  In addition, on the day of the interview, Mr Joff was stalking Ms Joff and the children.  Mr Joff demonstrated that he has no insight into the impact of his violent behaviour on the children but views himself as a victim of the ‘system, the judge, the Police and the DHHS who are destroying him.’

8. At paragraph 75, the report continued, and I am going to read through to paragraph 77 and then paragraph 79:

   DHHS have had extensive involvement which commenced in 1999 with some involvement, at this time as a result of Mr Joff’s violence.  Then following 2002, there was no further involvement after the separation, up until 2011.  At this time the DHHS involvement concerned Mr C, who was the partner of Ms Joff.  Then through 2015 DHHS involvement concerned Ms Joff’s mental health.  A Protection Application was issued on 4 March 2017 and I understand a Family Preservation Order was made which meant that DHHS have continued to have involvement and have monitored Ms Joff’s mental health. Through this involvement by DHHS, which included a supervised visit for the children with Mr Joff in 2016, also resulted in demonstrating that Mr Joff has not taken responsibility for his violence and that he was questioning the children about their school and where they lived, that he followed up with phone calls and attempted to make them feel guilty for not seeing him.  The children informed DHHS that they did not wish to see Mr Joff again.

   If the children had any curiosity about whether Mr Joff had made positive change prior to their supervised visit in 2016, their experience with Mr Joff during that visit and follow up telephone calls confirmed for the children that Mr Joff has not changed at all. 

   It is my view that Ms Joff should continue to have sole parental responsibilities for X, Y and Z as Mr Joff demonstrated he has not made any positive change.  In addition, it is my view that Ms Joff may be placed at risk if she had to share these responsibilities.  It is clear that Mr Joff has no insight into the children’s best interests.

9. Paragraph 79, the report continued:

   It is my view that, at this time, X, Y and Z should have no contact at all with Mr Joff at the present time and into the future.  It is my view that Mr Joff remains a potential risk to the overall safety of Ms Joff and the children.  It is my view that the following factors need to be seriously taken into account in assessing Mr Joff’s potential for extreme retaliation.  Mr Joff has no feelings of remorse.  He has no feelings of nurturing towards his children or of having any feelings of want and caring for the children, nor has he shown any feelings of remorse and guilt toward the children for exposing them to violence perpetrated on Ms Joff.  He has been very violent toward Ms Joff.  He has been physically abusive to the children.  He is angry towards the Court, Police, the Government and DHHS blaming everyone else for his violent behaviour.  He also blames his brain tumour.  He has lost all control over Ms Joff and the children.

10. The report went on to recommend, in plain terms, that Ms Joff have sole parental responsibility for the children, that they live with her, that the father have no spend time or communication with the children, and she went on to go so far as to recommend a permanent restraining order, protecting the children from Mr Joff.  That is not, I should say on any view an order that the Court will make, because the more effective way, if there were to be such a matter, would be through the State Courts.

11. This brings us next to rule 13.10. This provides that the court or a registrar may order that a proceeding be stayed or dismissed, generally, or in relation to any claim for relief in the proceeding, if the court or the registrar is satisfied that, relevantly, the party prosecuting the proceeding for claim for relief has no reasonable prospect of success relating to prosecuting the proceeding or claim. I would observe in passing that the Court also has power, pursuant to section 17A of its Act, to give judgment against a party if the party is defending the proceeding and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding, and it is provided that an application or defence does not have to be hopeless or bound to fail for it to have no reasonable prospects of success.  So the test as originally understood in cases like Dey v Victorian Railways Commissions (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 has been somewhat alleviated, and there is copious authority on these points, including Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 and High Court authority also.

12. In the face of the history, as revealed by the materials, I am of the clear view that whether it is approached under a more easy test in section 17A, or under rule 13.10, the applicant father really does have no reasonable prospects of prosecuting his case successfully. Ms J is an independent person, whose evidence one would reasonably imagine would be unchallenged as to what physically occurred on the day. Her professional opinion accords with the entirety of the materials in the court file. Although it is a very stark matter, in the face of these materials and the face of the failure of the father to get to grips with his previous conduct, notwithstanding his prima facie position in his affidavits, it simply stands firmly at the forefront of the Court’s considerations.

13. I also note that the children have confirmed their views to the Independent Children’s Lawyer, and I note that both with the report writer Ms J and with the Independent Children’s Lawyer, the children expressed a measure of fatigue at being continually involved in proceedings of this sort.  There is force to Ms Bonney’s submission that even continuing the matter to trial would be harmful for the children.  In all the circumstances, I am of the clear view, albeit that it is an extreme measure, or an unusual measure, and one takes it with the greatest reluctance, the proper order of the Court should be those proposed in the minutes put forward by the mother.  There will be final orders as proposed in the mother’s minutes, and consented to by the Independent Children’s Lawyer.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  8 December 2017