Joyce and Joyce

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOYCE & JOYCE

[2015] FCCA 2502

Catchwords:
FAMILY LAW – Parenting – Father seeking an order that his children aged 11, 8 and 6 spend overnight and holiday time with him – mother proposing no time – where the father has a lengthy criminal record, perpetrated serious family violence during the relationship, has been jailed for assaulting the mother, uses cannabis and has a long standing problem with alcohol – where the father has several recent convictions involving the use or possession of a knife – where the court cannot be satisfied that the children will be safe if they spend unsupervised time with the father – consideration of whether an order should be made for supervised time and whether there will be any benefit to the children in maintaining any sort of relationship with the father – order made that the children spend no time with and have no communication with the father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Mazorski & Allbright (2008) 37 FamLR 518

Applicant:

MR JOYCE

Respondent:

MS JOYCE

File Number:

PAC 5653 of 2012

Judgment of:

Judge Terry

Hearing dates:

27 & 28 July 2015

Date of Last Submission:

28 July 2015

Delivered at:

Newcastle

Delivered on:

2 September 2015

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Tonkin Drysdale Partners

Solicitor Advocate for the Independent Children's Lawyer:

Mr B Quinn

Solicitors for the Independent Children’s Lawyer:

Brian Quinn & Associates, Solicitors

ORDERS

The children U born (omitted) 1997, V born (omitted) 2000, W born (omitted) 2002, X born (omitted) 2004, Y born (omitted) 2007, Z born (omitted) 2009 (“the children”) shall live with the mother.
The mother shall have sole parental responsibility for the children.
The children shall spend no time with and have no communication with the father.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained and injunction is granted restraining him from:
(a)removing the children, or any of them, from any school, extra-curricular activity, or from the care of any person with whom the mother has placed them;
(b)approaching or remaining at the mother’s home.
The mother is permitted to obtain passports for the children and to travel internationally with the children notwithstanding the consent of the father has not been obtained.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 5653 of 2012

MR JOYCE

Applicant

And

MS JOYCE

Respondent

REASONS FOR JUDGMENT

Introduction

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.
The parties in this matter have a complex family situation.
They have seven children. The oldest child, T, is a young adult who either lives with the father according to the father or floats between the parents according to the mother.
The next three children are daughters: U, who is 17, V, who is 14 and W, who is 12. They live with the mother and refuse to have anything to do with the father. The father maintains that this is because the mother has turned them against him and made up stories about him being violent in the home. However I am satisfied that this is not the case and that these children have been traumatised by their experiences of the father’s violent, alcohol-fuelled behaviour which occurred throughout his relationship with the mother and ended only with his arrest and removal from the home in August 2010.
The youngest three children, X, 11, Y, 8, and Z, 6, are not opposed to seeing the father as such. Y and Z were three and under two respectively at the time of separation and Y has limited memories of what happened in the home and Z apparently none.
These three children have spent some limited time with the father over the last two years but it has mainly been either supervised or for a few hours in a public place or at a sporting event. The mother also admitted during the hearing that at some point this year, not in accordance with any court order, she had let the children sleep over at the father’s home on a few occasions.
At the commencement of the hearing the father said that all he was wanting was for X, Y and Z to be able to stay overnight at his home once a fortnight. He also said that he would like time with them on special days such as Christmas. When asked by the Court if he wanted any block holiday time he said that he did although he did not expand on this.
The mother’s position at the commencement of the hearing was that she was willing for a final order to be made allowing the children to spend four hours per fortnight with the father in a public place. However during cross-examination she said that because of what she had seen and heard during the hearing she no longer wanted that. She said that until she saw the father in court she had no idea how unstable he was. In the end the mother sought an order that the father spend no time with the children.
The mother also sought an order for sole parental responsibility.
In documents he filed when represented, the father sought an order for equal shared parental responsibility. He did not address this issue at trial save to say that he objected to the mother being able to take the children overseas.
During final submissions the mother sought an order that would allow her to obtain passports for the children although there was no evidence that she had any present intention to travel. Her counsel also said that the mother was not opposed to the father being able to send the children letters, gifts and cards provided she could vet the contents.

The evidence

The father relied on his affidavit filed on 15 June 2015. He was self-represented and did not set out anywhere with precision the orders he was seeking.
The mother relied on her affidavit filed on 16 June 2015 and I have to say it was a very brief trial affidavit given the issues in the case.
I also had before me a Limited Issues Family Report which was prepared by Ms J, a family consultant, in December 2013.
The mother, father and Ms J were cross-examined.
The father was difficult throughout the trial. This was not entirely unexpected as he had been agitated and difficult to manage during mentions of the matter but during the trial he was frequently rude and uncooperative.
The father’s behaviour became markedly worse on the afternoon of the second day. He was rude to the family consultant while questioning her and after this he became very agitated. He walked in and out of the courtroom several times while the Court was endeavouring to wrap the matter up and take submissions, he swore in the face of the Court, and he was agitated to the point where the mother’s counsel asked for security to sit in court while he made his submissions.
The father is quite oblivious to the impact his behaviour has on others and is in complete denial about how stressful and difficult it is for others to have to manage his behaviour. He clearly sees himself as a victim and one of the documents he tendered to the Court had attached to it a leaflet from a men’s group, #21 Fathers, which states that 21 Australian fathers take their lives every week because of family access issues.
The father was a wholly unreliable witness and gave contradictory evidence on numerous occasions. He said during cross-examination that his memory was gone. He said that he thought he might have Alzheimer’s but when challenged said he had not been diagnosed with it but it was an explanation he had seized on to explain why he could not remember things. It is possible in my view that the effect on the father’s brain of a lifetime of heavy drinking is a more likely explanation.

Background

The mother and father met in 1984 when the mother was 16 and the father 23. They commenced cohabitation in 1987 when the mother was 19 and they have seven children. They are T, born on (omitted) 1993, U born on (omitted) 1997, V born on (omitted) 2000, W born on (omitted) 2002, X born on (omitted) 2004, Y born on (omitted) 2007 and Z born on (omitted) 2009.
The parties were separated for about two years from 2000 to 2002 and finally ceased living together in the same residence in August 2010 after the father was arrested and imprisoned following a violent incident at the home. The mother said that they had in fact been separated under one roof from 2007.
The mother and the children had a truly dreadful time of it prior to the final separation. The mother described the father assaulting her on numerous occasions including punching her in the head, punching her in the stomach, hitting her hard across her head and face and holding a large hunting knife to her throat when she was breastfeeding one of the children at which time the mother thought she was going to be killed.
The mother described having to escape through a window with the children, with the older children passing the younger ones out through the window and this was not something that occurred only once.
The violence was associated with the father drinking every day and using cannabis.
During the last incident in August 2010, the father had his hands on the mother’s throat and the mother believed that he was trying to kill her. After that incident she never allowed him back in the house.
The mother alleged that the father physically attacked T in 2008 and that he threatened T with a large long-bladed kitchen knife on another occasion. The father did not accept that those things had occurred but I accept the mother’s evidence.
The mother, the three oldest daughters and X all told the family report writer that the father threw knives into walls on many occasions and said that there were many holes in the walls at home as a result. They also described him throwing other things and punching walls.
U, V and W described to the family report writer in considerable detail what they had endured in the home. U said that as the eldest girl she sometimes had to stay and try and pacify the father while the others escaped. She described putting tablets in the father’s alcohol to try and make him go to sleep and stop ranting and raving and threatening the family.
In quite a bizarre passage during cross-examination of the family consultant the father reflected on what U had said about putting tablets in his beer. He said that he had not been taking any tablets and that he remembered becoming ill one day after drinking and going to the hospital where somebody mentioned rat poison which did not make sense to him at the time. He said that thinking about what U had said to the family consultant it now occurred to him that she had tried to poison him and that he intended to go to the police and ask them to charge her with attempted murder.
The father vehemently denied all allegations that he had assaulted and threatened the mother or damaged property save that he admitted that one Christmas Day he smashed all the Christmas decorations in the home because he was upset that the mother would not allow him to come to her parents’ home for Christmas lunch.
I do not accept the father’s denials. I accept all of the mother’s evidence about the violence perpetrated by the father. She was a calm and credible witness. There was also the evidence of U, V and W, and the family consultant saw no sign that they had been coached or were falsifying their detailed, coherent account of family life. In addition the father’s behaviour as described by the mother and the girls is entirely consistent with his numerous convictions for offences of violence both before and after separation.
The father has a lengthy criminal record dating back to 1978 when he was a juvenile. He has an alcohol problem of long standing and many of the offences are alcohol related. He is also a long-term cannabis user and has some drug-related convictions.
The father is quite delusional about the reality of the situation. Despite having twice been convicted of assaulting the mother, in 2000 and in 2010, he maintained throughout the hearing that she separated from him not because of his violence and alcoholism but because she was about to inherit some money and did not want him to get a share of it.
In his affidavit, the father said as follows:
While our marriage was not always ideal, I deny all allegations of violence, serious drug use and alcohol abuse made against me by the respondent, noting the entire lack of supporting medical evidence. I do, however, understand and forgive her for making those allegations. She loves our children also.
However I unreservedly accept the mother’s evidence about what she and the children suffered at the father’s hands.
The father’s attitude to the mother and to the three children who have rejected him is truly appalling and in my view he is consumed with self pity. He complained that he was in bad shape after the separation in 2010 because he “got divorced and chucked out of his home and had nowhere to live and had seven children ripped off him.” During final submissions he complained that his marriage had been “20 years wasted” and that he had put in 20 years being “enslaved by this woman”.
After the parties separated in August 2010, following the father being arrested for assaulting the mother, he did have a difficult time of it. He was sentenced to a short term of imprisonment but apart from that he had nowhere to live and was homeless.
Over time the father was helped to get a home and after these proceedings commenced he was referred to (omitted) Aboriginal Health Centre on the (omitted) and efforts have been made through that organisation to assist him. He has also been attending Alcoholics Anonymous.
It was the father’s case that his problems were now behind him and this is an issue I will examine in a moment.
The children remained with the mother after separation and spent limited time with the father. There was a little bit of time on isolated occasions but sometimes it was under very unsatisfactory circumstances. For instance the mother said as follows in her affidavit:
In June 2011, Mr Joyce turned up at V’s netball training drunk and pushed our two-year-old daughter, Z, really high on the swing without putting safety straps across her tummy. In July 2011, he took X out for a while; however, he didn’t return. I became frantic and rang the police. The police went to Mr Joyce’s flat and brought X back. Mr Joyce had been drinking and the police were very angry with me for allowing the situation to occur in the first place. They told me never to let such an incident happen again.
So the father spent some very limited and unsatisfactory time with the children in the period after separation but it was his case that things were on the improve for him in 2013 and in May 2013 he filed an application seeking orders about spending time with the six children, all apart from T who was then an adult.
The proceedings took a little while to get off the ground. The mother did not file a response for seven months. I am not entirely sure why that happened because the matter was then in another judge’s docket but by late 2013 things were progressing. A Limited Issues Family Report was prepared and was released in December 2013 and in early 2014 an order was made for the father to spend time with the three youngest children (the three older ones being unwilling to see him) at a contact centre.
Some visits took place at the contact centre but they stopped in October 2014, apparently because the mother found it very difficult to comply with the order and to fit in the children’s weekend activities around the requirement to go to the contact centre.
In February 2015 an order was made for the father to spend time with the children for four hours each alternate week in a public place and that has happened. The mother also confirmed that on one occasion prior to the commencement of the hearing in June 2015 she let Z and Y sleep over at the father’s home and on three occasions she let X do so. However as I have noted she said in the witness box that she had had second thoughts and was no longer willing to facilitate any time.

The father’s criminal convictions

Before I move to the issue of the children’s best interests, it is important to provide some further information about the father and one of the things I need to do, although it will be a little bit time-consuming, but it is really essential that I do it, is to set out the father’s criminal convictions.
The father’s first conviction was in 1978 when he was 17. It was for trespass and he was placed on probation.
In 1982 he was convicted of high-range PCA. He met the mother in 1984.
In 1986 he was convicted of low-range PCA and a couple of other driving offences.
In 1987 he was convicted of being intoxicated in a railway carriage.
In 1988 he was convicted of assault police, malicious injury, resist arrest, hinder police and also some driving matters and breach of recognisance.
In 1990 he was convicted of assault police, resist arrest, common assault, offensive behaviour and high-range PCA.
In 1992 he was convicted of cultivate and possess a prohibited drug.
In 1993 he was convicted of offensive language, assault, another offensive language, carrying a cutting implement and assault.
In 1994 he was convicted of assault, possessing a prohibited drug (for which he was sentenced to a short term of imprisonment) and late in the year, another possess prohibited drug.
In 1999 he was convicted of common assault.
In 2000 he was convicted of common assault (on the mother), contravene an ADVO, breach of bail and another common assault.
In 2001 he was convicted of high-range PCA.
In 2004 he was convicted of driving unlicensed and driving under the influence. He was sentenced to a term of imprisonment but on appeal was given a bond.
In June 2010 he was convicted of destroy and damage property x 2, resist police officer, carry a knife visible in a public place and throw a missile – which happened to be the knife – at a police officer executing his duty.
In August 2010 he was convicted of common assault x 2 (domestic violence) – that was the assault on the mother – and was sentenced to two months imprisonment.
In September 2010 he was convicted of behave in an offensive manner near a public place or school.
In October 2010 he was convicted of custody of a knife in a public place, subsequent offence; also in October 2010 of wilfully prevent free passage of a person or motor vehicle.
In July 2012 he was convicted of common assault and custody of a knife in a public place, subsequent offence.
In March 2014 he was convicted of common assault, resist police, common assault again several counts and intimidate a police office in the execution of his duty x 2, which all arose out of one incident which I will mention in detail shortly.
In summary the father has offended regularly for more than 30 years and his last conviction was only a little over a year ago and the convictions are concerning for a number of reasons.
One reason is the number of convictions involving the use or possession of a knife.
In 1993 the father was convicted of carrying a cutting implement. I do not know what that was all about but I do know what some of the later offences were about.
In June 2010 the knife offence involved an incident at a video store. The father was intoxicated, he was armed with a knife, he frightened the staff and he threw the knife at a police officer when the police attended.

In October 2010 the father was stopped by the police in the street riding a pushbike armed with a knife. The police report reads as follows:
When questioned regarding the possession of the knife the accused stated “I live on a farm. I use the knife on a farm.”
There is no reason to believe that this was true and the report then contains the somewhat amusing comment:
Police explained to the accused this was not a reasonable excuse for carrying a knife in a public place while riding a bicycle without a helmet or a shirt.
In July 2012 the offence in relation to the knife involved the father arming himself with a hunting knife during an argument with a neighbour over the parking of a motor vehicle.
The knife offences are deeply concerning because of the mother’s evidence that she was threatened with a knife during the relationship and that T was threatened with a knife during the relationship and because of the fact that the mother, the older three girls and X all told the family consultant that there were holes in the walls at home from the father throwing knives.
The father frightened contact centre staff in mid-2014 when he brought a large knife to the contact centre. They were very concerned. The father told them that it was just for cutting up fruit.
Another aspect of the convictions that is concerning is the number of occasions in which alcohol or drugs were involved. There are the high-range and one low range PCA convictions, the prohibited drug convictions and also the intoxicated in a railway carriage conviction which strikes a chord with the incident in March 2014.
The March 2014 incident, which isn’t very old, is exceptionally concerning. The father was totally out of control in a railway carriage. He pushed people, he hit people, the police were called and it took a number of railway employees and a couple of police officers to restrain the father at the railway station. He was extremely violent in the police van on the way to the police station, he threatened to kill the police when he got out of the van and the police had great difficulty restraining him at the police station.
The father’s evidence in the witness box about what happened on that occasion was really quite bizarre. From what I can understand from his version of events he got into the train with a cask of wine in order to go either to or from the (event omitted). He said that while he was on the train he mentioned that he had a headache and somebody gave him a tablet, a small white tablet, which he believed after he swallowed it was coated in battery acid. There was also a reference in his evidence which I didn’t quite understand to ecstasy, but he then denied that he had taken ecstasy.
The father had quite an extreme reaction after taking the tablet and was completely out of control. He attacked police officers, he attacked other people using the railway, he was extremely difficult for anybody to control and it took a number of people to handcuff him and keep him under control.
In a pre-sentence report in 2012 it was noted that the father had used alcohol dating back to his late teenage years. At one stage he apparently did a residential detox program and I think that was only a few years ago but that did not mean that he stopped using alcohol.
Another aspect of the convictions which is concerning is the fact that the longest the father has gone between two sets of convictions is five years but he has also been charged more frequently and he recently committed serious offences, a number of them, in 2010, 2012 and 2014.
Given the length of the father’s criminal history and the number of recent convictions it certainly could not be said that there is no chance of the father getting into trouble like that again.
The father does not accept this. He said that things were different now.
The father said that he was attending AA regularly and there was some confirmation of this in a letter from someone called X. He has also been attending (omitted) Aboriginal Health Centre on the (omitted). However in my view the father’s capacity to make permanent changes in his life and the reliability of the evidence he gave about his alcohol consumption has to be seriously open to question given events in the recent past.
The father commenced these proceedings in May 2013. He did a Parents Without Partners course in September 2013 which is good but in December 2013 he turned up at the family report interviews and Ms J said this about him:
The father smelled of stale alcohol, possibly due to alcohol being emitted through the pores of his skin. He could not maintain eye contact and he appeared to be agitated and anxious.
The father did not accept this as accurate but I accept Ms J’s version of events, so in December 2013 he presented in a concerning way.
In January 2014 an order was made for the three youngest children to spend supervised time with the father at a contact centre.
In March 2014 there was the extremely serious incident on the train which involved the father consuming alcohol and also very probably consuming an illicit drug. His explanation that he took an aspirin coated in battery acid is simply not believable.
I am not sure whether the fact that the father had committed those offences in March was made known to the judge who then had the carriage of the matter but in any event in May 2014 an order was made that the father attend (omitted) Aboriginal Health Centre to obtain some assistance. He did attend but there is reference in the records of that organisation to him admitting in June 2014 that he was still consuming large amounts of alcohol.
On 25 July 2014 it was reported that he had stopped drinking six days ago but was still using pot.
The father is still not to this very day abstinent from alcohol and his evidence about his alcohol consumption was very unreliable.
In an affidavit he filed in December 2014 the father said that he had been abstinent for 12 months. That is clearly not correct given the information available about the incident in March 2014.
The father admitted in the witness box that he still consumed alcohol sometimes and his evidence about that was contradictory. He said at first that he only drank at funerals. Then he said he drank sometimes when he “got the shits”. Then he said that two weeks ago he had attended a funeral where he had drunk some alcohol and used some cannabis.
There is no question that the father still drinks on occasions and this raises the concern that given his history it is only a matter of time before further incidents occur as a result of his consumption of alcohol.
The father is also still using cannabis. All of the drug tests he did in 2014 were positive for cannabis use. In the affidavit he filed in December 2014 he admitted that he used cannabis every night at bedtime and during the hearing he admitted that he had used cannabis only two weeks ago at the funeral.
So the father is still consuming alcohol, although there have been no incidents involving it since March 2014 and he is still using cannabis and it is very hard to avoid the conclusion……
[interrupted by the father leaving the court room]
The other point that I want to make here too, and the father has just probably amply demonstrated it again, is that his behaviour in court during the hearing was atrocious and confronting.
The father could not keep it together even in a court setting, even though every effort was made to accommodate him during the trial, and it is very hard to avoid the conclusion that he is a powder keg and it is only a matter of time before another serious incident such as the one in March 2014 occurs.
I note that the father has just left the courtroom. I am going to continue with this decision. I will settle the reasons so that the father will be able to read the rest of the reasons at some point if he wishes.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and the matters to which I must have regard to to determine the children’s best interests are contained in s. 60CC(2) and (3) of the Family Law Act 1975.
The primary considerations in s. 60CC(2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S. 60CC (2A) says that the second consideration has to be prioritised over the first consideration.
In some cases I make findings at this point about the primary considerations but in other cases it is preferable to make findings about the additional considerations first and this is such a case.
The additional considerations are contained in s. 60CC (3) and the first of these is any views of the children.
I know what the views of the older three children are, they are clear enough and they want nothing to do with their father.
X, Z and Y have spent very limited time with the father since his arrest in 2010 so they had not had much to do with him for about three years prior to them seeing Ms J.
X told Ms J that the father had been better since he was kicked out but as Ms J pointed out that he has spent very little time with the father since then and is unaware of things that have happened in the father’s life since then.
X said that he had no objection to seeing the father.
Y and Z also said that they had no objection to seeing the father and they related well to him during the observation session at the family report interviews. Ms J said as follows however and there is a lot of merit in this:
An analysis of X, Y and Z’s views in regard to the limited issues is that their memories of the father are not as entrenched as the older children and their views of the father not as distorted as their older siblings’. They are much younger than their older siblings –
although I do not think X is much younger, but in any event that is what Ms J said –
and their sense of the father being dangerous is minimal. They have very little understanding of how alcohol impacts on his behaviour and do not have the maturity and necessary skills to manage a situation if the father becomes intoxicated and violent.
There is a limit to the weight I can place on the views of the youngest three children because they are simply not in a position to make a realistic assessment of the father.
I must have regard to the nature of the relationship between the children and each of the parents.
The children all have a good relationship with the mother and they are all more than happy to continue living with her.
Y and Z are not afraid of the father and Ms J observed a positive interaction between them and the father and the contact centre notes also reveal a positive interaction between Y and Z and the father. During one of the visits the father almost seemed to ignore them but during the other visits he interacted quite well with them.
X’s relationship with the father seems a little more nuanced. He was happy enough to see the father at the family report interviews in December 2013 but there was incident between X and the father at the contact centre in mid-2014.
The father badgered X relentlessly about why X had not answered his telephone and the supervisor was unable to get the father to desist and after that time between the father and X at the contact centre was suspended. However, X has taken part in the short unsupervised visits which have occurred since February 2015 and the mother permitted him to stay overnight at the father’s home on several occasions in 2015.
The father’s relationship with X seems to have its problems, perhaps to be an on-and-off relationship from the evidence I have.
I must have regard to the extent to which each person has taken the opportunity to spend time with the children, communicate with them or make decisions about them.
The father did not have much to do with the children in the first three years after separation when he was struggling with his own problems. He has recently sought the opportunity to spend time with them.
I must have regard to the issue of financial support.
The father pays minimal, if any, child support and that is not going to change in the future. He does not have an income-earning capacity.
I must have regard to the likely effect of any change in the children’s circumstances.
I will not try to make any findings about that until I make findings about the rest of the s. 60CC (2) and (3) matters.
I must have regard to the practical difficulty and expense of the children spending time with a parent but that is not relevant because both parents live on the (omitted).
I must have regard to the capacity of each parent and any other person to provide for the needs of the children including their emotional and intellectual needs.
On a day-to-day basis the mother has a good capacity to provide for the needs of the children. She presented very well in the witness box. She does not have mental health issues. She does not take drugs and she does not abuse alcohol.
My concern about the mother is that she does seem and I am aware of her last-minute change of position in relation to the orders, but she does seem to me to be somewhat desensitised to the risk the father poses to the children. She agreed to overnight time on several occasions prior to the trial and I am concerned that at times her judgment about the children is not the best.
It is highly regrettable that the mother stayed in an extremely violent relationship with the father for a very long time and even on the mother’s evidence that has had a serious impact on at least some of the children.
I would not be surprised if it had had a serious impact on all of them but I have limited evidence about that. I have a little bit of evidence about it from the mother though. In paragraph 50 of her affidavit she said as follows:
In 2007, I noticed an alarming effect that Mr Joyce drunken rages were having on U. While Mr Joyce could drink for hours on end and not become violent, nevertheless, over the years, we were able to recognise changes in his behaviour, tone of voice and use of expletives which were indicators that he was heading to one of his drunken rages. As soon as these indicators became apparent, U would start to lose the strength to stand up and fell to the floor. It was as though U’s legs had turned to jelly.
The mother said in her affidavit that the effect of the father’s drinking on the children was brought home to her in September 2013 when she was on holidays with the children in (omitted) and this was years after separation.
The mother said that she and her cousin bought a six-pack of beer for the adults to drink and the beers were put in the fridge in the mother’s unit. The mother went next door but heard a commotion in her unit and discovered that W in a distressed state was pouring the beer down the sink. W told the mother that she was concerned that if the mother had a drink it might lead to her going down the same track as she had witnessed with her father.
These are a couple of tiny windows in I have, and I also have what the U, W and V told the family consultant about the effects on them of those years of living with the father with his drinking and violence.
I am sure if one went to look for it there would be a massive amount more information out there about the effects on these children of having been exposed to this violence and alcoholism let alone cannabis use.
It would be easy but to an extent perhaps unfair to be critical of the mother for staying in the relationship for so long but the mother does have to accept some responsibility for the exposure of the children to this situation.
The mother provided some evidence about why she stayed in the relationship. At paragraph 21 of her affidavit she said as follows:
I observed that when Mr Joyce was not drinking heavily or taking drugs he was a soft, gentle and likeable man. He was soft when sober and unpredictably crazy, abusive and physically violent when drunk and adversely affected by drugs.
The mother also said in her affidavit that she was concerned on at least one occasion that if she called the police DoCS might come and take the children away.
Situations involving family violence and alcoholism and drug use are very complex and people often stay in relationships far longer than they should. I understand that people can find relationships like this, damaging and destructive as they are, very difficult to leave, but the mother has to accept some responsibility for what has happened to these children.
I am also concerned about the fact that the children post-separation have perhaps been exposed to some unsatisfactory behaviour by the father, some drunken behaviour, but it has certainly been on a very limited basis.
It is difficult to find anything good to say about the father in terms of his parenting capacity.
I will briefly mention his accommodation because the father sought overnight time although his accommodation is the least of the problems.
The father lives in a two-bedroom flat. When T is there T has one room and the father has the other. There is no place for the children to sleep except in the father’s room or in the lounge. That might be okay for one overnight visit but it certainly would not be okay for anything much more than that.
However that is the least of the problems with the father.
The other problems are his alcohol abuse, his cannabis use and his violent and antisocial behaviour and for reasons I have given earlier there is absolutely no reason to suppose that those problems are behind him.
On his own admission the father continues to use cannabis. He made some admissions about continuing to use alcohol which he seemed to have forgotten later in the hearing. He said that he was trying to beat his problems with alcohol. He said he was healthy and he was surfing and weight lifting and he was trying to beat his problems and it might be that he is trying to beat them but given his long history of alcohol use while ever he continues to drink and is not abstinent it is impossible to believe his problems with alcohol are behind him.
The father has had some mental health issues in the past. On a couple of occasions in the not-too-distant past he threatened to hang himself and was taken to hospital. He is currently taking Seroquel although I also note that he is still drinking on occasions and using cannabis.
The father clearly has problems with authority and problems with anger management. Some of his problems with the police in the past occurred when he was drunk but not all of his problems occur when he is drunk.
There was an incident at the contact centre on the day the father was badgering X about the telephone calls. The father became very angry with the contact centre worker and he threw a Frisbee. The contact centre worker was convinced that it was thrown at her. The father said that he threw it hard and it struck a pole and he described the contact centre worker as “squealing like a maniac”.
I am far from satisfied that the father did not throw the Frisbee either to frighten the contact worker or directly at her and he certainly was not drunk on that occasion.
The father also said during cross-examination that only a couple of weeks ago he was uncontrollable cranky and went out and bought a punching bag.
Given the father’s long history of violence and the long history of incidents with knives the fact that he can become angry and act out even when he is not consuming alcohol is seriously concerning.
The father has just demonstrated his difficulty keeping his temper during the delivery of these reasons although I expect that some of the things I have been saying would have been very difficult for him to hear, but he also demonstrated it during the hearing. He so easily loses control and that is relevant to the issue of whether it is appropriate for him to spend even small amounts of time with the children by agreement with the mother.

The father has had problems with knives and he took a knife, the size of which concerned the contact centre, to the contact centre, allegedly to cut up fruit. He is the kind of man who could go off unexpectedly because something upset him at a beach or in a park or in a public place and that is deeply concerning in terms of him spending any unsupervised time with the children.
It was the father’s case that he was the victim of childhood trauma and that he was trying to do something about his problems but there was simply nothing to give the Court confidence that the father’s problems were behind him.
Another deeply concerning thing about the father and about his capacity to care for the children is that he accepts no responsibility for his own behaviour.
The father is in complete denial about his violence during the relationship with the mother save for admitting that he smashed the Christmas decorations. When challenged about his behaviour his general approach is either to deny that he has done anything wrong or to act as if people have to make allowances for him and put up with his rudeness and swearing and aggression because he suffered childhood trauma.
I have considerable concern about the father’s attitude to the three older girls who do not want to see him. The hostility he displayed when he talked about U during the hearing was very, very concerning. Not only did he talk about perhaps having her charged with attempted murder, he also referred to her as a “bully”. U is his 17-year-old daughter who has been a long-term victim of his violence in the household.
I seriously question the father’s capacity to provide for the needs of his three younger children.
The incident at the contact centre with X where the father badgered him about answering the telephone raises a grave concern. Given the father’s volatility and his attitude toward his older children it raises a concern that the father may be capable of turning on any of his children without much notice if they do something to upset him.
It is also important not to forget that there was no evidence that the father had ever provided any day-to-day care for the children – made meals for them, ensured they had a shower, read them bedtime stories or got them to school. There was no evidence of that in either party’s affidavit and no evidence that the father had a capacity to deal with any of those things.
There was no evidence that the father had the capacity to deal with any behavioural issues which might arise with the children, because children are not always well behaved, they can test a parent’s patience. Given the father’s propensity to become angry, one would have to be seriously concerned about him having the younger children in his care for any length of time because his capacity to deal with them if they did something he didn’t like or that displeased him would have to be seriously open to question.
There was no evidence that the father was capable of nurturing the children or even showing any great interest in them as individuals. He is more focused on his rights to see the children and is consumed with righteous anger that other people are standing in the way of him doing so.
I am conscious of the fact that T, who is a young adult, lives with the father but the mother said during cross-examination that T also partly lived with her. She also said that T was smoking cannabis. Whether that has anything to do with the fact that he is partly living with the father I don’t know but it is concerning and it adds a level of concern about what these younger children would be exposed to if they spent time overnight with the father.
An issue in the case is Aboriginality because the father identifies as Aboriginal.
The mother does not accept that the father is Aboriginal. She said that he did not identify as Aboriginal during the relationship and that his family did not consider themselves to be Aboriginal but the father identifies as Aboriginal. He said during the trial that he was not sure of his origins. He thinks he is from a tribe from the (omitted) area and he has been very keen to do some painting, some dot painting.
The father brought a couple of his paintings to show the Court and he is very proud of his achievement in that regard. He said that he wanted to teach the children dot painting and something about their Aboriginal heritage.
The father appears to have been accepted locally as Aboriginal because (omitted) Aboriginal Health Centre on the (omitted) are helping him and I consider that I must for the purposes of this judgment accept that he is Aboriginal. Given that the mother does not accept that the father is Aboriginal, if the children do not see the father they will to lose any opportunity to connect with that side of the father.
I must consider the children’s maturity, sex and background.
The children the father wants to spend time with are young. They are aged between 11 and 6. They cannot fend for themselves and they would be entirely vulnerable if the father happened to go off as he has so often in the past.
In relation to family violence I have discussed that at length and I accept the mother’s evidence about the family violence. I do not accept, as the father suggested, that the three daughters who talked to Ms J made up at the mother’s behest the information they gave to Ms J. The father has two convictions for assaulting the mother so how he can stand there and say that he has never been violent to her is beyond belief.
I am conscious of the fact that the father has not physically harmed the three younger children but he has exposed all of his children to family violence. He is in denial about it. There is a considerable risk that he could be violent again in the future and expose the children to that violence.
Another concern about the father is his refusal to accept responsibility for his actions. What sort of a role model is he for his children – his 11-year-old son and his young daughters – if he refuses to accept responsibility for his past actions? I suspect that nothing that anyone says or does will cause the father to change in that regard. I think he is probably incapable of looking into his own actions and considering what he has done.
I must consider whether there are any family violence orders. There are not at present; there have been in the past.
I must consider the attitude of the parents to the children and the responsibilities of parenthood.
I have already mentioned my concerns about the mother’s failure to protect the children although I accept there were extenuating circumstances in that regard.
The father showed a poor attitude to his children when he verbally attacked his three older daughters because they revealed to the family consultant how violent he had been. His attitude to them is appalling and it raises a concern about how he would react if any of his younger children challenged him at any time. They are likely to be rejected by him in exactly the same way.
I must consider whether the Court should make the order least likely to lead to further proceedings.
The order the mother sought, namely that the children spend no time with the father, is the order least likely to lead to further proceedings because in my view the father is unlikely to come back to the court system, although there is a risk that he may act out in other ways.
An order that the father spend time with the children creates a high risk of further proceedings because of the likelihood of something going wrong in the father’s life.
The mother asked me to make an order which would allow her to obtain passports for the children. There was no evidence about that issue and no suggestion that the mother wanted to travel anywhere in particular at the moment. However an order for sole parental responsibility which the mother also sought will not allow her to get passports without the father’s consent and it may be prudent for me to make an order allowing for passports to issue without his consent just so that the matter does not have to come back to court unnecessarily.
I then have to return to the primary considerations which are
(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and

(b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

This is a complex matter. In broad general terms children benefit from having a meaningful relationship with both of their parents and if X, Y & Z spend no time with their father they are never going to have a meaningful relationship with him. However time alone does not lead to a meaningful relationship.
The father has demonstrated very clearly that he is unlikely to turn into someone who can provide nurture and guidance for these children. It is very unlikely that the father, even if I allow some time to happen, is going to have a meaningful relationship with these children in terms of being someone who is significant, valuable and important to them.[1]
[1] Mazorski & Allbright (2008)37 FamLR 518.
There might still be some benefit to the children seeing a little bit of him. As Ms J said it might satisfy their curiosity. They might benefit from knowing that the father is someone who had an interest in them. So there might be some benefit to them in spending some time with him even if the relationship could never be meaningful.
However what I then have to consider is whether they can safely spend time with him without being exposed to abuse, neglect or family violence.
There is a significant risk, in my view an unacceptable risk, of the children being exposed to family violence in the father’s care if they spend unsupervised time with him. The fact that no incidents have occurred during their brief visits with him in public places in 2015 or the visits to which the mother agreed when the children slept overnight does not mean there is no unacceptable future risk.
In the Family Report Ms J said:
The family consultant’s view of the limited issue is that the father poses significant risk of harm to the children due to his protracted alcohol and drug abuse and his propensity for violence with no regard to the children’s safety or for their emotional and psychological wellbeing.
I wholeheartedly endorse this view in light of the evidence about the father’s convictions, his continued alcohol use, his cannabis use and the serious incident which occurred in March 2014.
Ms J went on to say:
In light of the reports made by the mother and children, the family consultant is of the view that until such time as a full family report can be prepared, the father spend supervised time only with the children.
This matter went to a hearing rather than to a full family report but again I wholly endorse the view that the father poses an unacceptable risk to the children in terms of them spending unsupervised time with him.
This is a case too in which supervision would not necessarily completely remove the risk. The father is a very difficult man. He has been difficult in the court setting where if you would expect anyone to try and keep themselves under control and make a good impression you would expect it to be there. He has been difficult not only during the trial and not only today but during mentions of the matter. He was difficult at the contact centre on one occasion, very difficult for the contact centre worker to contain, and in the end, in anger, he either threw a Frisbee at her or, in my view, threw it hard into an object to frighten her, and really it doesn’t matter which it was.
The father badgered X at the contact centre on one occasion and would not stop or rather he stopped for a little while and then followed X outside and kept doing it.
Supervision of the father’s time is not necessarily going to remove all risk of these children being exposed to some violence, some anger, and some unsatisfactory conduct by the father.
The other problem of course is that long-term supervision of time is impractical but I will come to that in just a moment.
Limited periods of time in a public place are sometimes a way of controlling risk. People might be able to hold it together for a limited time. They might not act out in public. However given that the father does not seem to let concern about the impression he makes on anyone be a brake on him acting out and given that he can be unpredictably violent and that he has been violent in a video store and violent to a neighbour over a parking issue, on which occasion he armed himself with a knife, the risk of something occurring which might upset him, someone doing something on a beach, someone doing something in a park, and then the father acting out violently and aggressively, has to be there.
Short periods of unsupervised time in a public place are not a solution in this matter and longer periods of unsupervised time with the father given his alcohol use, cannabis use and propensity for violence cannot even be considered.
The only thing that could be considered would be supervised time and even that would not necessarily remove the risk of the children being exposed to the father’s violence and anger.
The other thing of course is that the father’s alcohol use and cannabis use exposes the children to risk of neglect in his unsupervised care. If the father was using cannabis at night when the children were there or was drinking at night when they were there, even if he did not act out violently there is risk that he would not have any capacity to provide for the children’s needs as a result of being under the influence of a substance.

Parental Responsibility

The presumption in s. 61DA of the Family Law Act 1975 does not apply in this matter and I could not even remotely consider making an order for equal shared parental responsibility. I could not possibly ask the mother to deal with the father and try to discuss long-term issues about the children with him. I intend to make an order for sole parental responsibility.

Conclusion

This is a complex matter involving a fractured family.
The oldest child is an adult who spends some time with the father but is also using cannabis.
The next three children, girls, refuse to have anything to do with the father.
X and the two youngest girls are willing to see the father but have no recent experience of his particularly bad behaviour.
The father wants to see the children who are willing to spend time with him. He wants to teach them about the Aboriginal heritage which he maintains they have, and as the mother said he can be a soft and gentle person when he chooses to be and is not affected by a substance. There was one seriously problematic visit at the contact centre but there were several subsequent visits in which he talked very well to the two youngest children Y and Z and interacted well with them.
However the starting point in this matter has to be that there is absolutely no doubt that the children will be at unacceptable risk of harm if they spent unsupervised time with the father.
I have already discussed why even short visits in a public place are not a suitable means of dealing with that risk. I do not accept the father’s assertion that he has made changes in his life which means that risk is removed.
I then have to look at other possible solutions in the matter because as I said there are occasions when the father can relate well to his children and the children, the youngest three, are not opposed to seeing him.
One possibility would be time as agreed between the mother and the father and the mother could decide if the father was in a fit state to see the children. However the mother does not want that responsibility and I do not consider she should be required to accept it. I am also conscious of the fact, and I do not mean to be harsh to the mother, that her judgment has not always been good in the past. She has sometimes allowed time to occur when really in my view it should not have occurred, so such an order might mean that the children could be placed at some risk.
In any event the most important thing is that the mother does not want that responsibility on her shoulders and after what she and the court have seen and heard during the hearing, I would not be prepared to force her to accept that responsibility.
The only way in which the father would be able to spend some time with these three children at the moment, the three children who aren’t opposed to seeing him, apart from seeing them at sporting venues which I will come to in a moment, is to spend supervised time with them.
However that is also problematic. While most of the contact centre visits went well, one of them did not and there was an angry acting out and some violence by the father on that occasion. Supervised visits do not necessarily protect the children entirely.
Supervised visits are difficult for the mother and the children. The mother has six children at home, not three. The children have sporting commitments. They have weekend activities such as Nippers and football. It is difficult for the mother to facilitate the time at the contact centre.
And the other issue too is this. If some time does occur at a contact centre what benefit ultimately is that going to be for the children? What real benefit is it going to be for the children to have a relationship with the father?
The father accepts no responsibility for his violent behaviour or for the destruction and damage he has caused to his family by his violent behaviour, alcohol abuse and drug use. To this very day he paints himself as a victim. He says that lies have been told about his violence even though he has convictions. He maligns the three daughters who have rejected him because of his behaviour. He is not a person on whom any of his children and in particular his son X ought to be modelling themselves.
So what benefit will there be to the children even if I manage to craft some orders for the father to spend some limited time with them?
Another issue is that if supervised time is ordered, the likelihood is extremely high that for one reason or another, the unavailability of a contact centre, issues at a contact centre or something else, the matter is going to end up back in court. The matter has already been in the court system for two years and prolonged court proceedings are difficult for the mother and therefore for the children.
I am not prepared to make an order for supervised time when it is still likely to expose the children to some risk and is not likely to be particularly beneficial for them and may break down leading to the matter coming back to court.
I do not consider that the benefits of making that order outweigh the detriments.
I accept that an order for no time will mean the loss to the children of any chance of a connection with their Aboriginality because the mother does not accept that the father is Aboriginal. However I do not consider that this loss alone is sufficiently concerning for me to consider making an order for supervised time even if I could come up with some form of supervision that might work.
The father could potentially continue to spend some time with the children by attending sporting events or school events. I could make an order for him to do that. I am not going to do so however because I am concerned that he might act out at one of those venues.
I suspect that the father may continue to attend the venues anyway because he knows where the children play netball and he knows where X plays football. The mother did not ask me to make an order preventing him attending at the venues as such but I do intend to make the no time order sought by the mother and I am not going to make an order permitting the father to see the children at those venues.
This case makes me very sad. The mother remained with the father for a very long time. She had seven children with him. She described the positive aspects of his personality which made him an attractive person when he was not drinking and not being violent. The father presents to this court as a damaged person. I am very sad for him. However I do not consider that there is likely to be any real change in the father in the future and I cannot in all good conscience make an order that the children spend time with him.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 25 September 2015

[2015] FCCA 2502

2 September 2015

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