Tinks and Barrow

FEDERAL CIRCUIT COURT OF AUSTRALIA

TINKS & BARROW

[2017] FCCA 829

Catchwords:
FAMILY LAW – Parenting dispute about 6 year old child – serious family violence by father – elder children estranged from father as a result – father’s personality aggressive and lacking insight – mother seeking sole parental responsibility – father refusing counselling and lacking insight into the benefits thereof – orders made as sought by mother and, largely, supported by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(2A), 60CC(3)

Goode v Goode [2006] FamCA 1346

Applicant:

MR TINKS

Respondent:

MS BARROW

File Number:

MLC 2303 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

18 and 19 April 2017

Date of Last Submission:

19 April 2017

Delivered at:

Dandenong

Delivered on:

28 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr Tinks, in person

Counsel for the Respondent:

Ms Fisken

Solicitors for the Respondent:

Frid & Associates

Counsel for the Independent Children’s Lawyer:

Mr O’Connell

Solicitors for the Independent Children’s Lawyer:

Robert Halliday & Associates

ORDERS

The mother have sole parental responsibility for the child X born (omitted) 2010.
The mother inform the father as soon as practicable of any major long-term decisions she makes about X.
X live with the mother.
X spend time with and communicate with the father as follows:
(a)During school terms on alternate weekends from the conclusion of school Friday to 5.00 pm Sunday with the mother to collect X from the father’s residence at the conclusion of time;
(b)From 5.00 pm Christmas Eve to 12.00 pm Christmas Day in odd numbered years and from 12.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years;
(c)From 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm Father’s Day;
(d)For a block period of 3 nights and 4 days during all school term holidays at times to be agreed and failing agreement on the first weekend of the school term holidays from Friday after school or 3.30 pm until 5.00 pm on the following Monday;
(e)For a block period of 3 nights and 4 days during the long summer holidays at times to be agreed and failing agreement on the first weekend of the long summer holidays from Friday after school or 3.30 pm until 5.00 pm on the following Monday;
(f)A minimum of 2 hours on the Father’s and child’s birthdays at times to be agreed and in default of agreement from 5.00 pm to 7.00 pm.
(g)By telephone/skype once per week each Wednesday between 5.30 pm and 6.00 pm with the father to initiate the call;
(h)Such other times as agreed in writing.
The father’s alternate weekend times with the child to continue during all term and long summer holidays, unless otherwise agreed in writing, save that the mother (on giving 28 days notice in writing) be permitted to have a block period of 21 days with the child in January of each year (provided that there is make up time provided to the father for any alternate weekend time missed with the child).
The Father’s time with the child be suspended:
(a)From 5.00 pm on the Saturday before Mother’s Day for the rest of the weekend in the event that the child is not already in the mother’s care;
(b)From 5.00 pm Christmas Eve to 12.00 pm Christmas Day in even numbered years and from 12.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years;
(c)On the mother’s birthday from 5.00 pm to 7.00 pm;
(d)On the child’s birthday from after school until 7.00 pm if it falls on a school day and from 3.00 pm to 6.00 pm if it falls on a non-school day.
When not otherwise proscribed in these orders or agreed in writing, changeovers shall occur at (omitted) Shopping Centre outside (omitted).
The order appointing the Independent Children’s Lawyer be discharged.
Pursuant to ss. 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and in particular 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 Tinks & Barrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 2303 of 2016

MR TINKS

Applicant

And

MS BARROW

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of a child, X, born on (omitted) 2010. As things have finally devolved, the applicant father seeks an order for joint parental responsibility, that X spend time with him each alternate weekend and, possibly, an evening in the other week, together with half school holidays. The mother seeks an order for sole parental responsibility and that the father's time be limited in school holidays to no more than four nights. The Independent Children's Lawyer broadly supports the mother's position but has an alternative proposition about parental responsibility.
For the reasons that follow, I am going to make the orders sought by the mother.

The parties' materials

In his initiating application filed on 11 March 2016, the father sought an equal shared time regime and shared parental responsibility. His accompanying affidavit deposed to the commencement of the relationship between him and the mother in 1993, cohabitation in 1994 and the birth of their children, Y and Z (dates of birth not given). He deposed to marriage in 2007, becoming bankrupt in 2009, the birth of X in 2010 (date not given) and the break-up of the relationship due to financial strains and an alleged affair, with the wife seeing a psychiatrist and taking prescribed medication (date of separation not given). The father deposed to working for a (employer omitted) as a full-time (occupation omitted) since 2013 and that he had not seen X since April 2015.
A subsequent affidavit filed on 4 April 2006 was predominantly designed to show photographs of X with various people, including the father. He also deposed to complaints about the mother's new partner, Mr M.
The mother's response, filed 15 September 2016, sought that the father spend time with the child every second weekend and two to three days each school holidays, together with telephone calls. The mother sought sole parental responsibility.
The mother's affidavit was, likewise, somewhat sparse on detail. She deposed that she was 17 years old in 1993 when she first met the father while the mother was completing Year 12 at (omitted) School. The affidavit referred, albeit in a very generalised way by and large, to family violence, although the family violence alleged was very serious, including being punched, stabbed in the leg with a screwdriver, and the taking out of a 12-month Intervention Order against the father in 2001.
On 12 April 2017, the mother filed an amended response. She sought sole parental responsibility, that the child live with her and spend time with the father every second Friday from conclusion of school until 5 pm on Sunday, together with a block of three nights and four days during every school term holiday and during the long summer break, together with ancillary orders. The mother also filed an affidavit contemporaneously. This, for the first time, gave details as to a number of issues. The mother was born on (omitted) 1976 and the father on (omitted) 1970. The relationship commenced in about mid-1993. Cohabitation commenced in about early 1994, with marriage on (omitted) 2006. Y was born on (omitted) 1994, Z was born on (omitted) 1995 and X on (omitted) 2010. The mother deposed that separation first took place in January 2014, and following a short period of living together under one roof, finally finished in February 2014. The father has spent no time with Y and Z thereafter and, according to the mother's affidavit, spent no time with X from 28 December 2014 till May 2016.
The mother went into much greater detail in this second affidavit about the father's alleged family violence. I do not propose to traverse the extensive and detailed history that the mother gives, save to note that the assaults alleged are extremely serious and that the mother has obtained (herself or through the police) three Intervention Orders since separation in February 2014. The affidavit also notes that the father has not lodged tax returns for a number of years, and this substantially reduces his child support payments.
The above recitation shows that the materials filed by the parties themselves by way of affidavit is really, in many ways, somewhat sparse. This is partly because of the father's self-representation and approach to litigation generally (as revealed by his conduct at court) but also because the issues, in truth, are somewhat confined.

The family report

The family report prepared by consultant Ms L is dated 29 January 2017. I extended an opportunity to the father, who expressed dissatisfaction with the report, to cross-examine Ms L, but he expressly disavowed this opportunity. Indeed, I requested him to consider his position overnight as to whether he wished to do so, and he informed me on the second day of trial that he was clear that he did not.
I note that Ms L recorded the lengthy gap in time when the father did not see X following separation, that the time did eventually recommence and, by the time of the report, was occurring reliably. In addition to time from Friday till Sunday 5 pm, the father also telephones X each and every Wednesday at 7 pm. I note that Mr Tinks has described himself as a self-employed (occupation omitted) for a (employer omitted) and that his extended family members live on the (omitted) (paragraph 8 of the report). The child was then attending (omitted) Primary School in the suburb where the mother lived. The mother lived with X and her two older children in a three-bedroomed house which is apparently suitable. She is employed as a (occupation omitted) for a (employer omitted) company, and both she and her partner Mr M work standard office hours. The two elder children are studying. X has contact with the mother's extended family while in her care.
The report writer noted that the mother asserted that she was the primary caregiver of the children pre-separation and referred to the mother's allegations that the father was a gambler. The report noted the competing positions of the parties at paragraphs 19 and 21. The father was seeking completion of school Friday to commencement of school Monday, plus half of all gazetted school holidays, and a dinner in the off week. The mother was seeking sole parental responsibility and time during school holidays to be limited. Her reasons for seeking sole parental responsibility were, essentially, the controlling, aggressive and difficult behaviour of the father, including from time to time with school staff. The father referred to the very poor communication between himself and the mother, and at paragraph 26, it is recorded:
That he is unable to communicate with Ms Barrow. “There is so much hate and resentment on her part."
At paragraph 27, the report recorded that the father felt “That Mr M is posting pictures of X “all over his Facebook page” which in his view is inappropriate. He is comfortable with the man being Ms Barrow's partner, however believes it is inappropriate for him to assume parenting rights and responsibilities with X.”
The mother defined the key issues as the father's incapacity to negotiate amicably and that he was unable to control his aggression if he is ever upset. The mother complained that the father denigrates her to X and complained of his stalking her post separation by telephoning and texting 20 to 30 times daily post separation. She described an incident where the father showed up at Mr M's home while X was in his care, shortly after their relationship commenced. The mother also complained that the father fails to support X financially, and yet drives around in a Mercedes and lives in a penthouse. There were a whole series of asserted risks arising out of the difficulties between the parents and various other matters described at paragraph 35.
The report recorded the mother's claims of assault on her by the father and abusive behaviour post separation, including a matter that led to a charge of sexual assault (which was ultimately not the subject of a court finding).
The interview with the father was, in my view, unremarkable. I note that the father thought the mother was a good mother to the child (paragraph 43) and that he is estranged from both his older children (paragraph 45).
The mother's recitation of her family background and the like is unremarkable. She had no concerns about the use of illicit substances or excessive alcohol consumption by the father, but said that his abusive behaviour was all natural.
X was interviewed, and I note that she understood that her parents separated because her mother did not like her father and it was hardest for the father because he really liked the mother and the other children (paragraph 64). The child expressed a clear of love of both her parents, although I note if she is naughty with her father, her father sometimes yells at her (paragraph 72). X likes Mr M and knows that her father does not like him (paragraph 74). She sometimes misses her mother when she is with her father (paragraph 75). The person to whom she is most emotionally close is her mother (paragraph 81). The father calls Matt (Mr M) bad names (paragraph 89).
When observed with both the father and the mother, it was clear the child had a very happy relationship with both.
Z and Y were interviewed together. They described the father as aggressive and a socially unintelligent person who uses manipulation and bribery as a form of love (paragraph 98). At paragraph 100, they said:
When asked more specifically of their experiences of their father, they spoke of how he threw plates; that they witnessed how he once knocked their mother unconscious and that he would refer to Z as being “the bitch.”
The report noted at paragraphs 106 - 108:
There are identified risk factors is that Mr Tinks will expose X to his feelings and experiences of her mother and siblings. For this to occur will not be in her best interests.
There are also identified risk factors that Mr Tinks may not be able to adequately regulate his emotions in the event X misbehaves while in his care.
In the event the Court Orders shared parental responsibility, there is an identified risk factor that the adult conflict will increase, and therefore X may be exposed to ongoing interparental conflict.
The report noted that parents had failed to establish a relationship pre or post separation that was functional and cooperative (paragraph 109). The report noted that, given the intensity of the ongoing hostility between the couple, it was unlikely they would have the capacity to communicate and cooperate in regards to their daughter's ongoing care, welfare and development (paragraph 109).
At paragraph 110, the report noted:
On the basis of information provided for this Report preparation, there is also the possibility that to be required to communicate and co-parent their child, may be used by Mr Tinks as an opportunity to engage frequently with Ms Barrow. Should this occur, it is likely to cause her to feel considerable distress and compromise her parenting of X.
The report noted at paragraph 111:
the theme of his information is that he has been a victim of Ms Barrow's behaviour towards him. He was observed to glare towards Ms Barrow and Mr M on one occasion throughout the day.
Having noted the allegations made by the two elder children and their lack of interest in a relationship with their father, the report recommended that it would be in X's best interests for the father to undergo active and sustained psychological treatment to address his own early-life experiences and current personal function, to invite a self-focus in regards to the impact of his behaviour towards others (paragraph 114). The report noted that as X becomes more independent and might question her father, he might struggle to cope with disciplining the child respectfully (paragraph 115).
The report noted that X interacted well with both her parents on the day. At paragraphs 122 - 124, the report noted:
My observations of this child, including her development and interactions with both parents indicate that she is largely unscathed to date. Both parents were observed to follow her play on the day and interacted with her age appropriately. X was animated, chatty and appeared to be happy with both her mother and father. Her information indicates that Mr Tinks denigrates Mr M to her and/or in her presence. For this to occur is not in the child's best interests as she needs to feel secure in the company of all the significant adults in her life.
Children need a relational environment that is harmonious, respectful and cooperative in order to develop optimally. X has not been provided with this post separation. It is likely that she will become more aware of the adult issues as she grows and develops.
X is Mr Tinks’s only connection to his former family life. In the event he behaves towards her in a manner similar to his behaviour with her older siblings their relationship is unlikely to be able to be sustained.
The report went on to recommend that the father continue spending time in accordance with existing orders, that time during school holidays be limited to four nights until and unless and/or unless Mr Tinks addresses his ongoing issues in relation to aggressive behaviour, and that consideration be given to the mother having sole parental responsibility. It was recommended that Mr Tinks be required to undergo active and sustained psychological treatment to critique his behaviours and the origins of these and that he be invited to develop a self-focus into the adult issues and the reasons for his estrangement with his elder children. The report recommended a particular psychology to undertake this work. He was also to undertake a Triple P parenting program.

The evidence and submissions at court – the father

Mr Tinks opened his case and informed the court that he wanted to have X every second weekend and for one night in the alternate week, together with half the school holidays. This obviously meant one week in term holidays and, as was clarified, three consecutive weeks in the long summer holidays. He was seeking from after school Friday till 5 pm Sunday. He also sought equal shared parental responsibility. He complained that the child's school had been changed from very close to where he lived to some distance away.
Mr Tinks adopted his affidavits as true and correct.
Mr Tinks was extensively cross-examined by counsel for the mother. I do not propose to paraphrase the evidence given in great detail. This is because, almost from the very inception of the evidence, Mr Tinks' demeanour was extremely pronounced and easy to construe. He was cross-examined about his employment and gave extremely evasive and non-responsive answers both as to what he did (it appears he is, in fact, self-employed, despite having described himself as a (occupation omitted) and working for a (employer omitted)), and also as to the extent of his income. He has not lodged tax returns for many years. His attitude towards the proceeding was strange. He had not read all of the mother's material. Although he had received the material a week before the trial, he said he had been too busy to read it because he had spent the weekend with his daughter. He confirmed he did not like Mr M, the mother's partner, but denied speaking about Mr M in front of X.
He affected not to have read or understood the Independent Children Lawyer's case outline or that of the mother. He had only read the family report briefly but said a lot of it was untrue. Although he had been offered psychological treatment following an attack on him by the Apex Gang and had undertaken it, he did not otherwise need counselling. He did not need counselling for anger. He had had one visit at a post-separation parenting course. He completely denied that he needed to have counselling and would not consent to orders for counselling. He did not understand why he might need it.

When asked what he thought of the mother, he replied, “She is the mother of my children. That's where I will leave it."
Mr Tinks said he wanted equal shared parental responsibility. This was because X was his little girl. This was about schooling and doctors. He said consultation was very important but was presently very poor. He said all the problems were at the mother's end. He confirmed that he obtained three extra nights in school holidays by agreement with the mother and that the longest time X has spent with him was three to four nights. He completely denied having problems with anger management. Nonetheless, he conceded he had no relationship with his children Y and Z. He had read what they had told the family report writer, but this had not made him reflect.
Mr Tinks made some slightly bizarre and difficult to understand remarks to the effect that he had been threatened by some person worth three to four hundred million dollars who was threatening his life. Quite how this interacted with his children was not made clear.
Cross-examination ended for the day at this point and continued on the next day, when Mr Tinks, as I have earlier indicated, indicated that he did not wish to put any questions to the family report writer, despite being alerted to the fact that the report would still be in evidence before the court.
Mr Tinks denied stalking, harassing or assaulting the mother. He had not read the wife's trial affidavit overnight. He had not read the police records tendered. He said he had been in court every month in the previous year facing criminal charges instigated by the mother. He was legally represented. He said that when the matter was before the court on 15 July 2016, there were more than 10 charges. The police had told him there was no evidence, but he was convicted "thanks to your client". Mr Tinks affected to be unable to read the LEAP record, which is exhibit R1, because he did not have his glasses. When it was put to him that he had not told Ms L about his convictions, he responded, "Had she asked me?" This sort of irrelevant responding with questions of his own was a marked feature of Mr Tinks' evidence.
It is sufficient to say that Mr Tinks was about as evasive a witness as I have ever seen. He responded to numerous questions by saying that he did not remember, and his answers to questions about the occasion when he attended Mr M's home and parked the car with X in it were sarcastic, evasive and non-responsive. I note that when questioned about Mr M, he responded that he did not think Mr M was a good human. He said this was just an opinion. He denied matters recorded by Ms L showing that he had sworn when he saw Mr M.
The father’s hostility to Mr M was entirely apparent. During the course of his evidence, Mr Tinks glared at Mr M and the mother routinely. It is not perhaps possible to fully describe the intensity of the animus in his regard and mien on such occasions.
I do not propose to traverse the evidence in great detail. Mr Tinks denied any wrongdoing of any sort. According to Mr Tinks, all the matters raised by the mother in terms of assaults over time were wholly fictitious. He accused the mother of having estranged Y and Z from him.
Cross-examination by counsel for the Independent Children's Lawyer was largely unremarkable. It seems fairly clear that the weekends X spends with the father are extremely active. I note that the paternal grandmother lives in (omitted), but most of the father's other family live on the (omitted). He has not taken X to see the paternal grandmother, who is too old to drive. I note that the father did confirm that he does not trust the mother at all and that she is constantly lying. He cannot communicate at all with the mother.
Cross-examination about an alleged $40,000 given to the mother by way of contributions towards child support, in my view, produced some unconvincing answers.

The evidence and submissions at court – the mother

The mother was called. She is a (occupation omitted) and adopted her affidavits as true and correct. The mother confirmed that X is at (omitted) Primary School, having started this year. She had told the father about this. She moved to (omitted) because, after separation, she was able to obtain rental property quickly. Y and Z are in the process of moving out and she is now in a relationship with Mr M. She thought (omitted) was a nice area, and it is for this reason that she has gone to (omitted) and enrolled the child there. The father has not paid anything whatever by way of child support.
Mr Tinks cross-examined the mother. He accused the mother of taking $7000 and $6000 in cash from under his mattress. The mother's denials were convincing. He also cross-examined about the washing machine that he had ordered and sent to the mother's premises, and it is clear that this did, indeed, occur. The father's cross-examination was hectoring and aggressive in style. He put it to the mother that she had gone to the police and admitted that she had made up stories, to which the mother replied, "No, you are lying." She had discontinued a second Intervention Order application because she was unable to go to court any more. X had asked her where her dad was and why she did not see him. Over time, she got more and more curious, so the mother had taken a risk and permitted time to occur. X was happy to be with the father.
The mother was opposed to half school holidays; only three days as a maximum should be allowed. She said it was in X's best interests to spend time with her father, despite him not liking her or vice versa. The mother was adamant that, in the past, the father had been aggressive or inappropriate in his contacts with teachers and other parents, and gave (omitted) School as an example. She said the father was aggressive and that that skewed his decision-making ability. She could not say why. She said the assistance of a psychologist was not for her, but would be better for the father and for her child in the long run.
Under cross-examination by counsel for the Independent Children's Lawyer, it emerged that the mother works Monday to Friday 9 to 5. The mother's health is okay, although she is still on antidepressants. She will probably cease these when this case is over. She knows the father's family but does not see the parental grandmother, but accepted that she would be important. She said that a lot of incidents advanced had not been reported to the police because she was scared. She had two children and was scared of the father's behaviour. There were four Intervention Orders and three since final separation. The father had been convicted of breaches of the Intervention Orders. Stalking was part of the charge and arose when the father came to Mr M's house. The father had come to park the car with X asleep in it and started swearing and yelling at Mr M and the mother. The father had sent multiple texts, thousands, unrelated to X. She had been kept in his flat when she went to collect a crêche bag. The mother picks X up at the end of time. This is difficult but has been okay so far. Mr M comes and sits in the car. There have been no incidents in the last 12 months. The father knew she was looking at (omitted) and was not happy and said it was not necessary to move. She said he would debate anything she wanted and it would go on and on. Even notification to the father of decisions would be for his own gain. He seeks to control her. Negotiating time was not, as the father had asserted, a simple and easy matter, but was a lengthy process and not an easy one. The interaction was not civilised.
Two documents were exhibited through the case. The first is the LEAP record, which shows that, on 15 July 2016, the father was convicted of “PERSIST CONTRA FAMILY VIOLENCE NTC/ORDER W/O AUTH/EXCUSE ENTER PRIVATE PLACE.” He was convicted and fined an aggregate of $4000. A number of charges of using a carriage service to harass were struck out and a stalking charge was withdrawn.
Exhibit R2 are emails or texts that were sent by the father to the mother. They are extremely offensive. It is not necessary to set them out in terms.

Some remarks about the demeanour and credit of the witnesses

Mr Tinks is a very large man. He may not even be wholly aware, given what I perceive to be his lack of insight, of just how big and threatening he appears. He certainly seems so to me. In court, his manner was a mixture of aggressive, belligerent, uncooperative with questions, and exceptionally evasive, as I have already said. He was at times sarcastic and rude to counsel. It is quite clear that he loathes and despises Mr M, and he also detests, despite his denials, the mother. He was not, in my view, in any way a reliable witness, and where his evidence differs from that of the mother, I accept that of the mother.
The mother, by way of contrast, was calm, dignified and directly responsive to questions put. She was clearly telling the truth. I entirely accept the submission of counsel for the Independent Children's Lawyer in closing that her explanation for not reporting the many serious acts of violence that she felt are important to the police was fear of the father, a fear well justified, as I would find.

Findings on the facts

The father, during the course of the relationship, was controlling and significantly violent to the mother in the presence of the two elder children. That is what they told the report writer and it is clearly true.
Since separation, there have been no less than three Intervention Orders, and the father has been convicted of breach thereof. This speaks for itself.
Both parties agree that communication between the father and mother is terrible, and given his approach to her, as revealed by the way he behaved in court, that is scarcely surprising. He is, indeed, extremely fortunate that the mother has had the insight to promote the relationship that X clearly wants with him, even though she has described this, reasonably enough in my view, as a risk. The father's utter lack of insight is nowhere better illustrated in his view that he does not have a problem with anger management and does not need psychological assistance with it and, indeed, would refuse to undertake it.
In saying this, I should emphasise that the father clearly loves X and that X clearly loves him. Furthermore, I see no reason to doubt the father's assertion that other parents trust him with their children, and that he may well indeed have an extensive social set of acquaintances.
Nonetheless, it is the circumstances of X in particular with which we are concerned. This brings us to the issues that are really before the court.

Sole parental responsibility

Counsel for the Independent Children's Lawyer proposed that there be an order for what might be described as qualified parental responsibility in favour of the mother. She was to have sole parental responsibility, provided that she kept the father informed of significant long-term decisions that she proposed to make in relation to the child, and set out a detailed proposal for this to occur, designed to limit interaction between the parties. This was the case despite the fact that the allegations of violence were serious.
Counsel for the mother opposed any form of qualification. It was submitted that the presumption of shared parental responsibility was rebutted by the family violence that had occurred. It was clearly not in the child's best interests to have an order for sole parental responsibility, even in the terms proposed by the Independent Children's Lawyer although there was no objection to the mother informing the father as soon as practicable of any significant long-term decision made.
Counsel pointed to the fact that the father had not chosen to cross-examine the family report writer, whose recommendations were clear.
Mr Tinks' submissions pointed to the fact that X was very happy with him. He said he tried to communicate with the mother but this was just impossible.
In my view, the position could not be clearer. Contrary to his denials, the father has committed multiple and, in some instances, extremely serious instances of family violence against the mother and in the presence of the child. He has also, as X told the family report writer, denigrated the mother's partner to X.
Having seen and observed Mr Tinks, I regret to say that I entirely agree with the opinion expressed by the mother. Any endeavour to include Mr Tinks in any decision-making process about X's best long-term interests will only involve an extended and most likely abusive set of interactions, because Mr Tinks is not able to communicate with the mother in any other way. If ever there was a case where the presumption of shared equal parental responsibility was rebutted, this is it. I note that, pursuant to s 60CC(2A) of the Family Law Act 1975, I am required to give greater emphasis to the need to protect a child from the risk of family violence and abuse than to the benefit of a meaningful relationship with the father. In all the circumstances, the position could not be clearer. X's best interests will be met by an order giving the mother sole parental responsibility. She has always been the child's primary carer. She will remain so. It is utterly impracticable to make any order for joint parental responsibility in any event.

How much time should X spend with her father?

It is not necessary to work through all the subsections of s 60CC(2) and s 60CC(3) in the particular circumstances of this case, although, of course, I have regard to the statutory pathway, as illuminated in Goode v Goode [2006] FamCA 1346 at [65].
The recommendation of the family report writer is clear. It suggests no more than four nights in school holidays, until and unless Mr Tinks addresses the various problems that he adamantly refuses to address. The Independent Children’s Lawyer and mother seek three nights and four days and in my view this is appropriate given that the father refuses to address his problems.
The report writer also recommended that time continue in accordance with the existing orders.
Those orders, made on 26 September 2016, provide for X to spend from conclusion of school or 3.30 pm on Friday until 5 pm on Sunday, with the father to collect X from the school and the mother to collect X from the father's residence at the conclusion of time, each alternate weekend.
That is the position contended for by both the Independent Children's Lawyer and the mother. It is clear from what X told the family report writer that, if she is away from her mother for too long, she becomes distressed. In my opinion, it is clear that the position recommended by the family report writer and adopted by both the Independent Children's Lawyer and the mother is the appropriate one. Indeed, it shows some greatness of mind on the part of the mother that she is prepared to consent to such time, given the father's treatment of her and the other children in the past.

Conclusion

In the circumstances, there will be an order that the mother have sole parental responsibility, but that she notify the father as soon as practicable of any major long-term decisions she makes in relation to X's wellbeing and development.
The extant orders remain in full force and effect as to the amount of time the father spends with X, and the order will be set out in terms. Additional time for special occasions has not, so far as I recall, been the subject of dispute. In any event, the times proposed by the Independent Children’s Lawyer seem appropriate.
I am not going to make the order for psychological counselling recommended by the report writer, because it is quite apparent that the father will simply not undertake it. His lack of insight is so extreme that he simply does not understand how much it might benefit him and his child, as the mother rightly surmises, if he was to do so, but it is a measure of his personality that he will not.
Finally, the appointment of the Independent Children's Lawyer will be discharged.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 28 April 2017

[2017] FCCA 829

28 April 2017

Key Legal Topics

Areas of Law

Family Law