MASON & LINDEN

FAMILY COURT OF AUSTRALIA

MASON & LINDEN

[2011] FamCA 350

FAMILY LAW – CHILDREN – BEST INTERESTS – Application by mother seeking the child live with her principally – Father seeking the child live with him principally – Assessment of which parent is to have parental responsibility of the child – Where previously the child lived principally with the maternal grandmother before the maternal grandmother deceased – Allegations of father abusing alcohol and drugs – Court did not accept that drug use by the father is at present an ongoing concern in respect of his parenting capacities – Consideration of the extent to which each parent has fulfilled his or her parental responsibilities – Order made for equal shared parental responsibility

Family Law Act 1975 (Cth) s 65D, s 61DA, s 65DAB, s 64B, s 60CA, s 60CC(2), s 60CC(3), s 60CC, s 60B, s 60CC (3), s 61DA, s 65DAA(1), s 65DAA(2)

APPLICANT:

Ms Mason

RESPONDENT:

Mr Linden

INTERVENER:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

8066

2007

DATE DELIVERED:

24 February 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Williams

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Mr Andrew

SOLICITOR FOR THE RESPONDENT:

Mugford Lawyers

Orders

That all previous orders be discharged;
That the father, Mr Linden, and the mother, Ms Mason, shall have equal-shared parental responsibility for the child, C Mason Linden, born … March 2001, herein after called "The Child";
That commencing from immediately after school on Friday, 25 February, the child shall live with the father at all times, other than the times that she is to live with the mother as provided for herein;
That the child shall live with the mother at the following times:
(a)during school terms, such terms to be in accordance with the school calendar of the school that the child is attending at the time:
(i)from when school finishes on each alternate Thursday until school commences on the following Monday, or the Tuesday, if that Monday is a Queensland Government gazetted public holiday, or otherwise a designated pupil-free day at the school the child is attending;
(ii)that alternate weekend time specified in 4(a)(i) hereof is to commence in the first week of each school term, when the child has lived with the mother in the first half of the immediately preceding school holidays, and in the second week of school term, when the child has lived with the mother in the second half of the immediately preceding school holidays;
(iii)more specifically, that alternate weekend time specified in 4(a)(i) hereof is to start during this current school term on Thursday, 3 March 2011.
(b)during school holidays, such school holidays to be in accordance with the school calendar of the school the child is attending at the time:
(i)for the second half of all the school holidays in 2011 until school starts on the first day back (including the Christmas school holidays at the end of 2011) and then in each alternate year thereafter;
(ii)For the first half of all the school holidays in 2012 from when school finishes on the last day of school (including the Christmas school holidays at the end of 2012) and then in each alternate year thereafter;
(c)On special days specifically:-
(i)from 5:00 pm on the day before Mother's Day every year, if the child is not already with her on that weekend otherwise pursuant to these orders, until the beginning of the school day on the day after Mother's Day;
(ii)for three hours on the mother's birthday every year, if the child is not already with the mother on that day otherwise pursuant to these Orders, and more specifically, if it is a school day then from immediately after school ends, and if it is a weekend then from 2:00 pm until 5:00 pm that day;
(iii)for three hours on the child's birthday every year, if the child is not already with the mother on that day otherwise pursuant to these Orders, and more specifically, if it is a school day, then from immediately after school ends, and if it is a weekend then from 2:00 pm until 5:00 pm on that day;
(iv)at Christmas - from 9:00 am on Christmas Eve until 2:00 pm on Christmas Day in 2011 and in alternate years thereafter, and from 2:00 pm on Christmas Day until 5:00 pm on Boxing Day in 2012, and in alternate years thereafter;
(d)at all other times as may be agreed in writing between the mother and the father.
That notwithstanding paragraph 4 of these Orders
(a)if Father's Day should ever fall on a weekend when the child is living with the mother otherwise pursuant to these Orders, then the child shall be returned to the father's care at 5:00 pm on the day before Father's Day, and shall remain with the father until school starts on the day after Father's Day;
(b)if the father's birthday should ever fall on a day when the child is living with the mother otherwise pursuant to these Orders, then the child shall be returned to the father's care for three hours, and more specifically, if it is a school day, then from immediately after school ends, and if it is a weekend then from 2:00 pm until 5:00 pm that day;
(c)if the child's birthday should ever fall on a day when the child is living with the mother otherwise pursuant to these Orders then the child shall be returned to the father's care for three hours, and more specifically, if it is a school day then from immediately after school ends, and if it is a weekend then from 2:00 pm until 5:00 pm that day.
That where changeover of the child's living arrangements pursuant to these Orders coincides with the commencement and conclusion of school, either during school term, or in respect of school holidays, then changeovers shall simply take place at school, with the parent who is not delivering the child to school to stay away from the parent delivering the child at the time of delivery, and the parent not collecting the child from school to stay away from the parent collecting the child at the time of collection.
That where changeover of the child's living arrangements pursuant to these Orders does not coincide with the commencement or conclusion of school on a school day, then changeover shall take place at the … Service Station, Brisbane Suburb 1, or such other location as is agreed between the mother and the father in writing in advance.
That the child shall communicate with the mother by telephone each Wednesday that she is not living with the mother between 6:00 pm and 6.30 pm, with the father to initiate the call for the child to the mother's landline number.
That the child shall communicate with the father by telephone each Wednesday that she is not living with the father between 6:00 pm and 6.30 pm, with the mother to initiate the call for the child to the father's landline number.
That each of the father and the mother shall keep the other parent informed of their respective current landline telephone number, and of their current address, and shall, if possible, inform the other in advance of any proposed change to either of those.
That the child shall continue to attend the Brisbane Suburb 2 State School, and shall not be enrolled to attend another school, including a high school, without prior agreement in writing between the mother and the father.
That the child shall continue to be known and referred to at all times as C Mason-Linden.
That each of the father and the mother shall notify the other as soon as practicable as to any medical emergency concerning the child.
That both the mother and the father shall be entitled to attend any event or activity at the school, or any extra-curricular organisation the child attends from time to time that parents of children are invited to attend, including by way of example parent/teacher interviews, assemblies, excursions, concerts and sports days.
That each of the parties is authorised to receive any information from any school which the child may attend, and to receive any information from any treating medical practitioner, or other professional concerning the child at his and her own expense, and this order is sufficient authority for that.
That in the event that the child is prescribed medication, or a particular form of treatment, which is required to continue into a period when the other parent will be caring for the child, then any medication or material required for treatment will be sent with the child, along with a description of the condition for which it is required, and the appropriate dosage, or method of treatment
That the mother and the father shall not denigrate nor insult each other, or any spouse or partner of the other to, or in the presence or hearing of the child.
That the mother and the father shall not use, or be affected by any illicit drug whilst the child is in his or her respective care.
That the mother and the father must not consume alcohol to excess while the child is in her or his respective care.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8066 of 2007

Ms Mason

Applicant

And

Mr Linden

Respondent

REASONS FOR JUDGMENT

In this matter that is before the Court the parents of the child, C Mason, born in March 2001, who will be, as I figure it, 10 years of age some time next month, namely, Mr Linden, her father, and Ms Mason, her mother, ask this Court to make parenting arrangements as between them with respect to C, as they are unable to do that themselves.
Essentially the mother, who is the applicant in the proceedings, seeks parenting orders that the child, C, live with her principally, and spends time with her father each second weekend during school term, from after school on Friday until before school on Monday, and then for half of each of the school holidays, and also some other arrangements providing for her to spend time with him on special days, as between them.
In contrast, the respondent father's proposal is the converse of that. He proposes that the child, C, principally live with him, and spend time with her mother each second weekend during school term, from after school on Friday until late on Sunday afternoon, and for half of each of the school holidays, and for times around special days, as between the mother and the child.
The applicant mother, Ms Mason, was born in 1982. That makes her now 28 years of age, heading towards 29 in the not too distant future. The father, Mr Linden was born in 1980, and is 30 years of age, approaching 31.
Ms Mason has, in addition to C, five other children. Each and every one of these other five children are half-siblings of the child, C, all having different fathers from C. There is J, who is 11 years of age, who is the child of Ms Mason and a Mr W. I note that J was born when Ms Mason was just 17 years of age. There is B, who is six years of age, who is a child to a Mr T. There is D, who is four years of age, who is a child to Mr T. There are twins, E and S, who are two, approaching three in May of this year, who are the children of Ms Mason and Mr K.
Mr W and Ms Mason were in a fairly short-term relationship when Ms Mason was only 17, that resulted in J's birth. Ms Mason and Mr T were in a longer relationship that lasted some years from some time around 2002 to some time around 2006, or 2007. Mr T and Ms Mason lived together during that time, and I will come back to that later in my reasons. The twins, E and S, were born of the relationship of Ms Mason and Mr K, and indeed Ms Mason informed me in evidence that she and Mr K knew each other, and were going out together for some time back in 2002. Indeed, in 2001 they were also together when C was born. They were together for some time over 2001/2002, and their relationship at that time broke down around late 2002. It broke down in circumstances following the State Government department that is responsible for child welfare removing J and C from Ms Mason's care. Mr K and Ms Mason resumed their relationship, and lived together for a number of years, certainly from, I recall Ms Mason saying, around 2006 through to late September of last year, whereupon they have separated. I will say more about that later as well.
The father, Mr Linden, has two other children himself, L, who is almost six, and M, who is three. They are both the half siblings, of course, of C, and they are the children of the relationship between Mr Linden and his wife, Ms O. They have been together in a relationship and living together since around 2003 approximately, and they married in January of 2008.
In this case, the evidence that was before me was, principally, two affidavits of evidence-in-chief by each of the mother and father, and four expert family reports prepared by Ms J. That was the extent of the evidence.
Now, Ms J is an experienced social worker, an experienced report writer, an experienced counsellor. Ms J worked as a case-work supervisor in the counselling section of this Court, the Family Court of Australia, in this Registry in Brisbane from 1985 until 1990. She then worked in this Registry in the counselling section as Director of Court Counselling from 1990 to 1996, and she has been a respected expert in private practice for 14 years since then, and would have done more reports than she could ever recount, I would expect.
Now, she has done reports in respect of this family, in particular, C, on four separate occasions: the first one she did on 1 December 2003, which is exhibit 5 in these proceedings; the next one she did in June 2004 – it is exhibit 1 in these proceedings; the next one she did on 28 January 2008 – it is exhibit 2 in these proceedings; the next one she did on 18 June 2010, and it is exhibit 4 in these proceedings.
I must say, that I have gained a great deal of knowledge of the circumstances surrounding C's childhood from reading those four reports that were admitted into evidence, and certainly they have been of enormous assistance to me in making the decision about the future parenting arrangements for the child, C.
By way of some additional background facts, some of which I have gleaned from the affidavit evidence that is before me, some of which I have gleaned from the oral evidence in cross-examination of the parties, and a lot of which I have gleaned from a reading of those four reports that I have just referred to, I say as follows.
It seems, although there is some dispute between the mother and father about the exact nature of their relationship at the time that C was conceived, that what is not in dispute is that they were together in some form of relationship from some time in late-1999 to some time in the year 2000. At that time, the mother was only about 17 years of age.
From Ms J's first report, and there has not been any assertion that she reported this incorrectly, I noted that apparently as a 16 year old, the mother, Ms Mason, spent some 25 days in a coma in Hospital 1 after taking a drug overdose in what was an apparent suicide attempt, as reported to Ms J. The mother apparently reported to Ms J, as Ms J recorded it, "That at the time she had nothing to live for." There was some suggestion that the apparent suicide attempt was in response to her learning of a young fellow who she was interested in at the time going out with a different girl the night before.
There does not seem to be any dispute that Ms Mason and Mr Linden, when they were together, had a particularly common interest in using marijuana. Probably also, although there is some dispute, some denial of it by Ms Mason, probably also amphetamines. It seems that they were both seriously abusing marijuana and probably amphetamines at the time, and Mr Linden and Ms Mason apparently separated at some point during her pregnancy with the child, C, so before C was born. Ms Mason was a young 17 or 18 year old woman with two young children, one of them a new baby, struggling with a drug abuse problem at that stage of her life, and having not long before spent over three weeks in a coma in hospital following a suicide attempt. She clearly was a troubled young woman.
When C was about 19 or 20 months old, some time in late 2002, C and her elder brother, J, were taken into care by what was the predecessor of the current Department of Child Safety, that is, the Queensland Government department charged with the responsibility of looking after the welfare of children. She was taken into care, on the mother’s own evidence, because of her drug abuse problem. The evidence establishes that C was in care for some time. It seems that she was with a departmentally-located carer for a little while. She was then with the mother's sister and husband for a little while.
Then it would seem - and I accept - that in October 2003 she was placed by the department for five days per week with her father, Mr Linden, and for the other two days per week with her maternal grandmother, Ms Mason Senior, that is, Ms Mason's mother. Interestingly, Ms Mason said under cross-examination in these proceedings, when it was put to her that the child had lived with the father for that period of time, five days a week for over 13 months when she was only still a baby, that she was not aware of that.
However, that the child had been placed with her father was reported by Ms J in her first report, when she first saw the parties, that is, during the time at which the child was living in accordance with that arrangement principally with Mr Linden. There has been no other challenge to that, or no challenge of that at any stage that I have seen on the evidence that is before me, and I accept it. So between the age of about 19 months and 31 months, so some time between the time when she was just under two to some time when she was nearly three, C lived principally with her father, and a couple of days a week with her maternal grandmother.
That is an interesting set of factual circumstances, in that the father, on the evidence before me, had not had a lot of time with C before that. Although he had been seeing her, he had not spent a lot of time with her, and she had not spent a lot of time in his care before she was placed in that arrangement. Now, that arrangement ended in November 2004 after a hearing that took place in this Court before O'Reilly J. In those proceedings, the dispute as to the appropriate parenting arrangements for young C was between Mr Linden, the father, and Ms Mason Senior, who was the maternal grandmother.
She was at the time principally caring for C's older brother, J, and she sought orders that C live with her principally, and spend time with her father. The mother, from reading Ms J's earlier two reports, was taking very little involvement in those proceedings, save for supporting, from the periphery, her mother's position as against the father. After that hearing, O'Reilly J made orders that placed C in the principal care of her maternal grandmother, Ms Mason Senior, and provided for her spending time each alternate weekend with her father.
Although I have not seen a copy of those orders in these proceedings, it is conceded they provided only for supervised time as between the mother, Ms Mason, and C, which was to be at the maternal grandmother’s discretion. The father says principally the reason that he believes that result occurred was because of her Honour's decision to keep the young siblings together. At that time, Mr Linden had not long commenced his relationship with Ms O. It had only just begun. She and he were still very young.
There was some peripheral concern still, particularly by Ms Mason Senior, and also Ms Mason, about Mr Linden's drug use. There was some urine drug screening done at the time, and indeed the drug screening results have been placed before me as evidence in these proceedings, and are marked exhibit 3. Regardless of what was said about how many tests he has done over the years, they show that he certainly did undertake drug testing, at least on 2 December 2002, which is around the time the department acted and took the children from Ms Mason, which did show that he had cannabinoids present in his system.

He undertook a further test on 25 March 2004, which did show that he had benzodiazepines present in his system, and then, after Ms J reported in her second report, but before the hearing, two further tests in June of 2004, namely 9 June 2004 and 28 June 2008, which showed that no drugs of any sort were detected on those two occasions. So, there was a span of nearly three weeks between the two tests in June prior to the hearing. Although there was reference by Mr Linden to other drug tests over the years, I know that it is accepted that at least one was undertaken in March last year, March last year being 2010, and I will come back to that shortly.
I understand also, from the reports I have read, that Ms O, Mr Linden’s new partner at the time, had suffered a miscarriage some time shortly after Ms J's second report, so some time around the trial no doubt. I recall Ms J may have raised some concerns about what they were having to deal with at the time. Without having the judgment of O'Reilly J as evidence in these proceedings I cannot make any further findings about what may or may not have been the reasons that persuaded O'Reilly J to make the orders that she did, that is, leaving C principally with the grandmother, and spending time with the father.
Significantly though, O'Reilly J clearly determined that it was in the child's best interests to continue to see her father, and his partner, Ms O, on a fortnightly basis, but only to see her mother at the time at the discretion of the grandmother, and under her supervision. Clearly the mother was not in a state, even at that stage in 2004, to have any seriously meaningful role in the parenting of young C, and also J. Now, it seems then that the arrangements in respect of C continued like that from late-2004 through at least until 2007. The father apparently brought some contravention proceedings in 2007, that I understand did not proceed anywhere, even though he said that there was some proof of the breach. As I understand, those proceedings did not continue to a resolution where Ms Mason Senior was punished in any way for contravention.
The father then brought another application for the child, C, to live with him, which led to the third report of Ms J being prepared in January of 2008. The proceedings were in the Federal Magistrates Court. The mother apparently participated in the proceedings to a greater extent, indeed as a party, the second respondent, and again supported her mother, that is, Ms Mason Senior’s position in remaining as the principal carer for young C.
However, the mother, on that occasion, sought unsupervised time. I note here particularly, that in paragraph 25 of Ms J’s third report – the report of January of 2008, which is exhibit 2 in these proceedings – that Ms J says that the mother, Ms Mason – that is when she interviewed her on 15 January 2008, relevantly, only three years ago when C was then – she’s now almost 10, so she was then a bit less than seven years of age –acknowledged that she:
…sees very little of [C], and most of her information is derived directly from [Ms Mason Senior].
Now, that bit of information is a little bit at odds with the evidence that the mother has given in her affidavits – both of her affidavits in these proceedings - that she got to see a lot more of C when C was living with her mother than did the father. It is unclear what period of time the mother, Ms Mason, was referring to in that regard, but relying on what she is reported to have told Ms J, at least in January 2008, she was seeing very little of C and, indeed, acknowledged that most of what she knew about the whole arrangement came from her mother, and not from her own personal experience.
That is a relevant factual issue, in my opinion, because there is no suggestion that the father did not continue in his relationship with the child to have a meaningful relationship on an alternate fortnightly and half holiday basis throughout the years 2004 through to 2007. Whereas I can find, accepting Ms J’s reporting in 2008, that the mother probably had not seen C much over those years. I find, therefore, that it is most likely, on the balance of probabilities, that the father’s relationship with C was closer, at least in 2008, than was the mother’s relationship with C.
Now, in March of 2008, by consent, all three of the parties agreed that the living arrangements for C would remain as they were - that is, that the child would stay principally living with Ms Mason Senior - and that she would continue to spend time with Mr Linden every second weekend and half of school holidays. But they were changed to this extent: that the mother, Ms Mason, would get one weekend per month with C - still not as much as C was getting with her father.
I just digress here, momentarily, to note this interesting fact as well: when Ms J prepared her second report in 2004, she reports that those on Ms Mason’s side of the proceedings – that is, her mother, Ms Mason Senior, and Ms Mason Senior’s partner – all were keen to report that the new relationship that Ms Mason was in with Mr T was a very good relationship, and one that was providing significant benefit to Ms Mason; that Mr T had given her ultimatums about drug use, to the effect that if she used serious drugs he would leave her, and that he was a good influence on her.
By the time of the third report being prepared in January of 2008, things were not as rosy. That relationship had completely broken down and, Ms J reports, had broken down, on the reports of the Mason side of the family again, when Mr T had fallen into serious abuse of more serious drugs, had started to resort to serious violence with respect to Ms Mason, including, as I read, either a threat to or actual dowsing of her with lighter fluid, and threatening to light it. I also saw reference in the third report – the January 2008 report – to the fact that Mr T was either in, or was about to go to prison in respect of his conduct.
In the meantime, Mr T and Ms Mason, as I previously reported, had produced two children who had to live through all of that trauma. Now, in the third report, the Mason side of the family then reported to Ms J that the mother was then in a relationship with Mr K and, in similar terms as what was said in the second report in 2004, that that was a promising relationship, and that he was a good influence on her, and he was providing stability, etcetera, in her life. I will come back to that in a moment.
In late 2008, Ms Mason Senior, sadly, fell ill with cancer, more specifically, lymphoma in the lungs. Apparently, she fought it bravely for 12 months, but then, fairly suddenly, succumbed to the disease and passed away in December 2009. Now, prior to her death, when the children, J and C, were principally living with her, they had been attending primary school at Town 1 State School. Now, of course the mother, by then, was in a – apparently on the evidence, and I do not have any reason to doubt it – reasonably good relationship with her own mother, save for the fact that some time, I think, earlier in the year, or the year before, her mother had actually taken out a domestic violence order against her, as well as, around the same time, having taken one out against Mr Linden, apparently arising out of circumstances where tempers got heated, on all accounts, because of disagreement about parenting arrangements.
But, however, it seems that Ms Mason and her mother, nevertheless, were in a relationship where they communicated and got on well enough for Ms Mason to see the children, and to assist Ms Mason Senior through her illness and, indeed, with some of the parenting responsibilities for the children whilst she was undergoing treatment and suffering from her illness in 2009. Apparently, according to the evidence I have seen, Ms Mason Senior wrote out, as a testamentary wish, effectively, that C go to live with her mother, Ms Mason, after, or in the event of Ms Mason Senior passing away. This was at a time when Mr Linden was still seeing C, or having C spend time with him every second weekend, and for half of the school holidays.
The maternal grandmother, Ms Mason Senior, passed away in December, which was just at the start of the state school Christmas holidays at the end of 2009. Ms Mason apparently immediately took the two children, J and C, into her household, and into her principal care. She did that, I find, without informing Mr Linden of her mother’s death, and without consulting with him as to the appropriate arrangements in respect of C. As I understand, from the evidence that I have seen in this matter, Mr Linden says that he had been proposing with Ms Mason Senior through the latter stages of her illness in 2010 that they have a transition of care for C from her care to his care in the circumstances of Ms Mason Senior’s progressing illness.
Clearly, then, Ms Mason, I find, was aware that it was Mr Linden’s desire and hoped-for outcome that the child, C, would live with him principally in the event of Ms Mason Senior’s death. Ms Mason acted unilaterally in taking the children into her care. She did not advise Mr Linden of her mother’s death. She did not talk to him about what the proposed arrangements for the care of C were going to be, and she obviously went to her solicitors and instructed them to commence proceedings that are these proceedings that have culminated in the hearing before this court this week – that is, proceedings where she sought to have the principal care of C.
Before she filed her proceedings, on 24 December 2009, I find that there was no attempt to negotiate with Mr Linden, through counselling or mediation or in any form, as to what was in C’s best interests. Clearly, Ms Mason made a unilateral determination that it was in C’s best interests to live with her without regard for C’s need to see her father on an ongoing basis. I say that latter part, because as part of the decision to retain C and proceed with an application to have her live principally with her, Ms Mason clearly chose to deny C any time with Mr Linden until the matter was ultimately determined by the Court.
Mr Linden was, on the evidence, apparently to have time with the child - or C was to have time with Mr Linden and Ms O and their two children – from the morning of Christmas Day through to some time on Boxing Day. She was then, according to the existing orders, to be in his care for the second part of the 2009/2010 Christmas school holidays. On the evidence, and there is no dispute about this, on 21 December 2009 in the evening, Mr Linden rang Ms Mason, clearly aware by then that Ms Mason Senior had passed away, and asked if he was going to still get C into his care on Christmas Day, and then for the following part of the holidays.
Now, Mr Linden asserts that it was agreed, during that phone call, that he would, and that Ms Mason agreed that she would deliver C to him in accordance with the Court ordered usual arrangements, that she would hand the child over to him at some time – I think it was 9 am – on the morning of Christmas Day at the Brisbane Suburb 1 … Service Station. He says that following that telephone conversation, and in accordance with that agreement, he went to the service station on Christmas morning and waited for some time, only to experience C not being delivered to him, whereupon he made an attempt to contact Ms Mason to no avail. He realised soon after that she was not going to be delivered to him, and that the time that she was to spend with him was to be denied.
He was unable to see his solicitors because of the Christmas/New Year break until some time in the earlier part of January. There was no evidence about what negotiations, if any, took place, or what communications there were as between the mother and Mr Linden through their lawyers, but what is an accepted fact is that the mother’s application was served on the father late in January of 2010, whereafter the father filed a response in the Federal Magistrates Court seeking the orders that effectively he now seeks – that is, that the child live principally with him. That application was first returnable in the Federal Magistrates Court some time in late March of 2010.
The mother’s counsel submitted to me at the end of the case that I really could not find that there was such an agreement – that is, an agreement to hand the child over to the father on Christmas Day at 9 am. The mother had not accepted that there was such an agreement and, indeed, it is true that at one point in the evidence the mother certainly was at pains to make out that there had been no such agreement. However, when the mother was first asked about it she had accepted that there was an agreement that she deliver the child to the father at 9 o’clock and I find that there was such an agreement.
The mother was asked questions as to why she did not hand the child over to the father on Christmas Day and she said that she “got the vibe” from the phone call that Mr Linden would not return C if she was delivered to him. In addition to that, her evidence was this: that she had actually put to Mr Linden that he would not return the child if she was delivered to him, which, she said, he did not deny; secondly, she said that the child, C, had told her that he would not return her, and she said that some other people had told her that he would not return her.
The mother was at pains to try and impress upon me that the decision not to let C go to him was: a) because she feared C would not be returned; and (b) a decision she was making in C’s best interests because C had just lost her maternal grandmother, who was her principal carer - who was her principal source of parental security in the world – and was struggling to cope with that, and that the father would not have appreciated that, or have been able to deal with it and give C the emotional comfort that she needed in such circumstances, such that the mother could give her.
It was, I have to say, not something that really impressed me, and what I mean by that is that I can not say that I accepted that that was Ms Mason’s true motivation in not allowing C to go to her father. Indeed, I gained support in that view from evidence that was given by Ms J under cross‑examination by counsel for the mother, Mr Andrew, during the course of the trial. When asked about it and pressed on it by Mr Andrew, in what was indeed a capable cross-examination by him in respect of a report that was effectively against his client, he put to her something to the effect that it might have been that the mother’s actions might have been better motivated than simply wanting to maintain control and possession of the child and prevent the father from seeing her. Ms J said:
It wasn’t my impression that this is why the mother prevented the father from seeing the child.
Ms J said it was more her impression that the mother had done it to maintain control. Indeed, in the circumstances, the mother herself was struggling with the loss of her own mother, Ms Mason Senior. She was also having to deal with the needs of a large family of five children, all very young. She was having to deal with, no doubt, J and his emotions, having lost the person who was his principal carer, as well as C and her emotions. The mother’s response in denying C any time with her father also, in circumstances where C had already had one sudden loss of a primary adult figure in her life, also caused her the immediate and sudden loss of her father and his partner and their two children in her life. Not only that, but the mother then took J and C out of the primary school that they had been attending for years at Town 1, and moved them, again, unilaterally, and without any consultation with Mr Linden about that, to Brisbane Suburb 2 State Primary School.
That, as Ms J pointed out, created even more disturbance and loss in the child, C’s, life. So notwithstanding the mother’s position in attempting to persuade me that her actions were well motivated, I find that they were not so well motivated, but that they were motivated by simply not considering what was best for C, and simply trying to maintain possession and control of C, vis-a-vis her father, Mr Linden, so there would be a far greater chance of C remaining in her long-term care. That was motivated less by what the mother thought was in the best interests of C, and more by what she thought were her own needs and desires in a position of long-term high conflict with C’s father.
It surprises me that, from nearly the beginning of December 2009 through to the beginning of April 2010, C was not able to have any time with her father, her stepmother, and her two half-siblings in the Linden household, notwithstanding that there were legal representatives on both sides. I find that that would have been quite traumatic for C. Indeed, the father, in his evidence, asserts that he was able to speak with C on the telephone prior to the first return date, at which time the mother informed him – and this was not disputed or challenged, so I accept it as an accurate recitation of what actually happened – that C had been asking every day to see her father. In the light of that, the continued denial by the mother of C being able to see her father, in my opinion, reflects poorly upon the mother’s attitudes to parenting, and her responsibilities as such.
Ultimately, the matter was resolved between the three parties on an interim basis in late March 2010, with an order that the father says he consented to on legal advice because it was an interim hearing, that the child remain with the mother principally, and that was because she had been there for nearly four months at the time, and no doubt the father was hoping that the matter would come before the Court on a final basis earlier than it subsequently did. Consent orders were put in place whereby C was to live principally with her mother, and spend time with her father on an alternate weekend basis, as she had been.
Those orders were subject to the father providing a clear urine drug screening test, the mother again raising concerns about the father’s marijuana use. The father apparently did that straight away, and was then given immediate time with C. In June of 2010, only two and a bit months after C began spending each alternate weekend again with Mr Linden and his wife and their two children, Ms J again saw all of the parties. Ms J reflected that one thing that has remained a constant in this case from 2003, from her first involvement, right through till 2010, is the amount of conflict, disrespect, and disquiet for each other that exists as between the Linden household and family and the Mason household and family. It seemed, from my reading of Ms J’s report, that she had simply resigned herself to an acceptance that that conflict is something that is never likely to abate. I have to bear that in mind as a reality when I make my decision about what is in the best interests of C in the future.
Again, in the 2010 report – and I will just refer to this part of it at the moment –Ms J spoke fairly positively about the involvement of Mr K in the life of the mother and C, and all of C’s other half-siblings in the mother’s household. She reported that Mr K apparently was heavily involved in the parenting of all of the children, and that he had a significant role. I quote from paragraph 84 on page 15 of her last report:
[Mr K] is at home each day until about 1.30 pm before he goes off to work. He was reported to be working an evening shift or an afternoon shift, as it's sometimes called, from 2 pm until 10 pm. He impresses as a very involved parent.
And I read elsewhere that he was heavily involved in doing the homework with the children, as apparently Ms Mason, not surprisingly, given her history, left school fairly young, and was not a very committed student during her full-time education, so Mr K was better able to help the children with their homework. Notwithstanding that, ultimately Ms J made a recommendation in her report of 18 June 2010 that C go to live principally with her father, and that she spend every second weekend, from Friday afternoon until Monday morning, as well as special occasions, with her mother. Now, in paragraph 97 Ms J says that which would ultimately, I perceive, be the most solid basis as to why she makes the recommendation in the report that she does. She says:
Upon the assumption that there are no other welfare concerns, it is my view that [C's] voicing of her needs must be the strongest guide.
She had said in the paragraph before:
[C] states that she wants to live with her father. In my opinion this is a heartfelt wish. She has not told her mother, for fear of incurring her wrath. Indeed the assessment day was very stressful for her, that is, [C], because she was "Going against the flow," so to speak.

And I will come back to that. Ms J made that recommendation and it was in this context that I digressed to it. She made that recommendation against the factual backdrop of having assessed Mr K as being a very involved parent, and being around until 1.30 each day, doing a lot of homework with the children. Sadly again for the mother, and all of her children, after that report was done by Ms J in late-September early-October, Ms Mason and Mr K separated, with Ms Mason moving out with the children into another home in the Brisbane Suburb 2 area, a four-bedroom home, which, on the evidence, requires C and B, when all the children live together in the household, to share a room together.
Ms Mason did not say much about that separation in her principal affidavit of evidence-in-chief filed not long before the trial this week, but well after the separation. To have relied on the evidence of the affidavit alone this Court would not have known much about the circumstances of the separation. That said, I asked some questions of the mother about it when she was in the witness box, principally as to what has caused the separation. She said she had moved out to be by herself, to be there for her kids a bit more. She said that she and Mr K were arguing a lot, and she did not want to do this arguing in front of the children.
The mother, when giving this evidence, became a little emotionally upset, and said that it was to do with the problems that she was having in regard to having lost her mother nearly a year before. That said, she was somewhat optimistic about the prospect of Mr K and her being able to work things out. She said that they had some arrangements in place in respect of the care of their two little twins that are nearly three, and that they had a legal aid conference coming up. Mr Linden has given evidence that he thought that Mr K and one of the other fathers, Mr T, had actually commenced proceedings in the Court in respect of parenting arrangements for their children with Ms Mason. Ms Mason denied that. I sought other evidence from Mr Linden to persuade me that that was true. None was forthcoming. Accordingly, I accept that they have not commenced such proceedings.
But, that said, Ms Mason did tell me that there was a legal aid conference coming up between her and Mr K. She said that the reason for that was that she had lost her children before, and she did not want to go through that again, and that they just agreed that they needed to sort out some parenting plan, and parenting arrangements with respect to the two younger children. That was, she said, also against a backdrop of the other children in the household all having different arrangements about when they see their respective fathers, going to and from the home.
This troubled me a little bit, because the fact that they have actually got a legal aid conference coming up suggests to me at first blush that there is some disagreement between the two of them about the nature of the arrangement. Indeed, there is another part of the arrangement between Ms Mason and Mr K that Ms Mason mentioned in her evidence that concerns me in this case. She was asked about what time the children, that is, the twins, the children of her and Mr K, spend with Mr K. The evidence is that Mr K works from 2 to 10 each night, that's five days a week. The mother said that from Wednesday to Friday the two twins go to the father, but then she hastened to say, "Not him, but to his mother's place."
The mother told the Court that she sends the twins off to Mr K's mother's home on Wednesday and has them come back to her at 2 pm on Friday. She keeps them overnight on Friday, and then on Saturday they go to Mr K, and then come back to the mother at 12 noon on Monday, having regard to the fact that Mr K would be starting work at 2 o'clock on the Monday afternoon. They then remain with the mother from Monday to Wednesday. Now, that means that the two twins, who are not yet three, are only in the mother's care for three nights and three and a bit days in a week, but in their father's care, that is, Mr K's care, for two nights, Saturday and Sunday nights, and his mother's care for two nights, Wednesday and Thursday nights. This means that they spend the majority of their time, with the mother’s apparent approval, away from the mother.
I consider it a relevant fact, and one that troubles me in respect of the mother's views of her own parenting capacity, for her to apparently - although, as I said before, they seem to be in disagreement because there's a legal aid conference coming up - accept that the best interests of these two little twins, who are not yet three, are served by spending the majority of their time in a week in the care of their father, or indeed their father's extended family. This occurs in circumstances where the mother does not work, and is a full-time parent. That indeed troubles me in respect of the mother's own assessment of what is in the best interests of those two children, bearing in mind what that appears to say about her own feelings about her capacity to parent these two young children in this greater household.
Further on that, I accept and agree with Ms J's view, expressed when she gave oral evidence in the proceedings, that she was not aware at all until I told her that Ms Mason and Mr K had separated, and that she considered that the circumstances of the separation present probability of further instability and uncertainty in the lives of this family, and particularly, most relevantly, in the life of young C, if she is to remain principally in the care of her mother. It is also noted again that Ms J has made glowing reports about Mr K and his involvement in the lives of the children in that household when she saw them in June.
Now, apparently his involvement is lost to Ms Mason, particularly in respect of J, C and their other two siblings. The fact that the mother said there might still be some hope that they could reconcile simply adds strength to the notion that the future is unpredictable and uncertain.
Now, just before I turn to the mother's concerns, I also want to note as a relevant fact that young C, who is almost 10, is reported in the evidence to be overweight. Ms J observed and commented upon that. The father says that C is overweight, and he is concerned about it, and has been for some time. He was concerned about her diet at her maternal grandmother's home. He is concerned that she is not involved in any extra-curricular activities, was not at the grandmother's house, and has not been at the mother's house.
It is interesting in that the mother did not really give any reasons or explanation as to why the child, C, has not been involved in extra-curricular activity, save for one I will revert to in a minute. But on the other hand she was quite proud to say that the child's brother, J, is actively involved in sport, and plays football, or soccer, as some people call it. She said that meant a lot of the arrangements in respect of the children have to be made around J’s commitments to football training and football games.
There was a concession by the mother that C wanted to do dancing, and that she was going to get her involved in that. That at one stage sounded promising. The father seemed happy with that, but then when asked about it in the witness box in cross-examination the mother said she had not put C into dancing because C did not want to do it because she had seen the costume that she had to wear. In respect of this issue of the child being overweight, I also read some evidence that suggests, I believe, that the father and his wife, Ms O, were sensitive to the child's weight issues, in that they permitted and facilitated her wearing tights, or leggings under her school uniform in circumstances where because of her weight they perceived that she was somewhat embarrassed.
The mother saw reason in that to complain, I note, but I accept the explanation that was given by the father, and actually point to it as being a sensitive parental response to the issue, one that is not just obviously confronting this family, but one that confronts this nation as a whole. I get a sense from that evidence that the father and his wife are mindful of the need to address the issue in respect of C, and help her to deal with it if she possibly can in the future. They, of course, would be in a better position to do that in C's best interests if she was living principally with them.
Now, I just turn now to what concerns were raised by the mother in respect of the father. The mother's case presented through her affidavits and her very comprehensively prepared Case Outline, which was relied upon by Mr Andrew as part of his submissions, presented the concern in respect of Mr Linden, that he still takes drugs. In saying that, the mother’s evidence was that the child had told her that. Ultimately, she also said in evidence that she had got that from other sources, sources that, of course, are just hearsay, and, in my view in this case, rather unreliable. The father denied that he still uses drugs.
The father underwent a drug test in March of last year which was clear. I am not aware of there having been any other requirement upon him to undergo tests, although some issue was made of it in cross-examination by Mr Andrew, valiantly trying to rely upon it as an issue in respect of credit. The father has been subject in the orders that have been in place over the last couple of years to prohibitions on using illicit drugs. There has been no application brought against him for contravention of that, and no other evidence put before the Court that convinces me, on the balance of probabilities, that he is still using drugs.
So, notwithstanding the mother's concerns about it, I do not accept that drug use, particularly marijuana use, by the father is at present an ongoing concern in respect of his parenting capacities. He readily accepted in the witness box that back in the days when he was a heavy drug user, he was a young man without much direction in his life. Now though, he says he is older, he is 30 years of age, he is married, he has a wife and two other children as well as C to parent, and take full responsibility for. I accept that his denials that he is using drugs are indeed reflective of a more mature, responsible attitude in that regard.
Further, the mother asserted alcohol abuse by the father, but apart from that assertion there was really no other evidence about it, and, indeed, I do not recall Mr Andrew challenging the father on it at all. There was a concern that he inappropriately disciplined the child. Having regard to there being no other cogent evidence presented by the mother supporting that, and indeed Ms J's report, which included reference by the child, or complaint by the child about things that are happening in the mother's household in that regard, but without any complaint that she is being inappropriately disciplined in the father’s household, I do not find that there is any inappropriate disciplining of the child happening in the father's household.
There was also a concern expressed by the mother that C reports domestic violence between Mr Linden, and his wife, Ms O. Now, I must say I did not have the benefit of any evidence from the father’s wife, Ms O in this case. That was a bit of a disappointment as in these sort of cases it is usual for a parent who is seeking full-time care of a child, who is remarried, to have an affidavit before the Court by their new partner, for the Court to get an impression of the new partner. I did not have it in this particular case.
But again there is no other more cogent evidence than the mother asserting that the child tells her this, and nothing in Ms J's report that gives me cause for concern that domestic violence occurs as between Mr Linden and his wife and so, on the balance of probabilities, I do not find that there is domestic violence occurring in that household that in any way impacts upon the decision that I must make. Indeed, I am troubled by the uncontradicted evidence that is before me, that on two occasions, once in late 2009, and that would have been before the death of Ms Mason Senior, and once in 2010, there were two instances of apparent violence between Ms Mason and Ms O (Mr Linden’s wife) on occasions where they came into contact with each other at changeovers of the child.
They both give different accounts of what happened. One thing is clear that some degree of conflict bubbled up to the extent of physical confrontation between the two of them. Ms O saw fit to report it to the police, and had, on the first occasion, bruises that were apparently photographed by the police. This was an occasion where the mother had followed Ms O to her home from school, where this confrontation then occurred at the front door.
The other occasion occurred at school, when Ms O approached C, who was then in the presence of her mother at school, and just went to say hello to C, and touch her on the hand. Ms Mason apparently then took C by the hand and moved her hand away from Ms O in a way that was clearly an aggressive sort of reaction to Ms O’s presence. Both women conceded that C ended up having a bruise on her hand, or her wrist.
I can not make any findings about who was really responsible for those occasions. Ms J raised concerns about why Ms O would have approached Ms Mason on the second occasion, after having had the experience with her on the first occasion. That does raise some questions about Ms O’s judgment. In respect of the first incident though, Ms Mason followed Ms O back to her home, and went to the door, apparently saying that she wanted to talk about some ointment, or some cream, or something that the child was having. That, I find, showed poor judgment, in my view, at least on the part of Ms Mason for doing that, and, when there is such high conflict between the households, exposing the child to such conflict. So in the circumstances of reflecting upon her own actions it seems odd to me that she would complain that in the other house there is domestic violence, without really there being any evidence to support same, other than her saying, "[C] told me this."
Most of what Ms Mason complains about in respect of Mr Linden and his parenting, is said to have come from C. Yet I am asked by Ms Mason’s legal representatives to accept that when C expresses a wish that is reported by Ms J as being apparently heartfelt, that I should not rely too heavily upon that because of the child's age and level of maturity. Yet the mother wants me to accept many things negative about the father that she reports simply because they are said by her to have come from C, yet were not reported by C to Ms J when she had the opportunity.
The mother's other complaint is that Mr Linden denigrates her and puts her down in front of C. Although there have been orders for non-denigration in place, it would not surprise me if Mr Linden does say at times negative things about Ms Mason in front of C, but in the circumstances of the long‑standing conflict that has existed between these families, and their inability to agree on virtually anything, I suspect that Ms Mason gives as much as she gets in that regard. I inform the parties at this point that I will be again making an order for non-denigration of each other parent in front of the child. I would hope and expect that it is complied with for C's sake.
The other major point that Ms Mason makes as to why C should continue to live with her is that it would not be in her best interests to separate her from her sibling, J, with whom she has spent most of her life. Ms Mason's evidence is that their relationship is extraordinarily close. I do not doubt that they have a reasonably close sibling relationship, save for this. Ms J was asked about this when she gave evidence, particularly by me, because one of the things that troubles me most about being asked to make a decision to place C in the principal care of her father is that it will mean that she is removed from living most of the time in the same household as her brother, J, with whom she has lived most of the time since her life began, in the same household.
I asked Ms J about it in the witness box, and Ms J said that she did not observe a special closeness between these two siblings. She said that against having initially stated, "It's true to say that she was raised with [J]," so, conscious of that, Ms J said she did not observe any special closeness between the two siblings. She was though, happy to acknowledge that C had particularly set herself aside from the others in her mother's household on the day of the report writing, and that that may have masked a closeness, and that was because, Ms J opined, C was preparing herself for telling Ms J that she wanted to live with her father, in her father's household.
Ms J noted in her earlier reports way back in 2003 and 2004, whilst sibling relationships and maintenance of them is a relevant and important point, "It is more important to get the parenting arrangement right, than it is to worry about the sibling arrangements." I take that into account and consider that when I am making my decision.
Just before I turn to the legal principles I want to say this. Mr Andrew, counsel for the mother, made a strong submission that because of a number of things that had happened over the years, the way Mr Linden had reported things to Ms J in the earlier reports, the way he dealt with his answers under cross-examination, that his credit had been impugned, and that I should not accept it.
He made the submission ultimately that credit mattered because if I found that the father’s credit was impugned it would be relatively easy for me to move to a finding that Mr Linden had actually acted in a way to persuade C to say, as she did to Ms J at the report, that she would prefer to live with her father than with her mother. Now, having heard that from Mr Andrew, and with respect to him, I will start by saying I do not accept that submission, and I do not find, on the balance of probabilities, that Mr Linden actively persuaded against the child’s better judgment, the child C to say that she wanted to – that she preferred to live with her father.
Now, I accept that on some matters the father’s credit was damaged by Mr Andrew’s cross-examination. I hasten to add to that, though, that in the history of this case, there has been continual, high conflict between the respective families, and apparent, complete disrespect for each other as parents and in respect of their rights and responsibilities and duties in respect of parenting C. Indeed, considering the apparent disrespect for the law that both Ms Mason and Mr Linden have shown in their earlier adulthood in the past, I have to say it is not surprising that sometimes honesty, total honesty, is a casualty in these circumstances.
That is not to condone that at all. I say that to make the assertion that is often made in these sorts of proceedings, that often the truth, where there is conflicting evidence given about something by both parties, lies somewhere between the factual versions of both sides. There were some aspects of the evidence given by Ms Mason in which I had trouble accepting its honesty, even though she was only cross-examined for a very brief time. There were some aspects of Mr Linden’s evidence where I had, indeed with respect to him, he being the only one sitting here out of the two parents today, difficulty accepting its complete honesty. But that having been said, that does not cause me to find in accordance with the submission that his credit is so badly damaged, or that he is so dishonest that I would immediately leap to the conclusion that he unduly persuaded the child.
Indeed, I am not even prepared to say that I find that he did not make any attempt to persuade the child. In all the circumstances, as Ms J said under cross-examination, it is not surprising when a child in this sort of situation comes and makes complaints to dad, maybe knowing that dad might want to hear those sort of complaints, that the dad does not respond by saying the sort of thing that a parent in an intact family might say: “What did you do to cause mum to be cross with you like that?” Indeed, it is highly likely that Mr Linden soaked up C’s complaints like a sponge. That is not to say that he then positively set about coaching her, or attempting to persuade her to tell Ms J that it was her preferred wish to live with the father.

Indeed, Ms J was asked about that by Mr Andrew. He challenged her on it. Mr Andrew put it to Ms J, “He could have persuaded her to want to live with him.” Ms J said, “Yes. I considered that as one of the possible interpretations, but I didn’t feel I saw or received any data that supported that interpretation.” Again, when pressed a bit later about the real probability of the father receiving information from C about the mother’s household then attempting to persuade her as to what was in her best interests, Ms J said, “That was not my preferred interpretation.” Ms J actually went on to explain that in her experience where a child is coached they generally immediately say they want to live with the person that they have been spending the time with before the conference, before the interviews; the person who brings them to the conference.
Ms J said that when that happens alarm bells ring immediately and that you have to be very careful of interpreting that as a true, heartfelt wish. Ms J said that in circumstances where the child is brought by one parent who she has been with for the last period of time before the interviews, and then says that she wants to live with the other, that that is less cause for concern, less cause for thinking that there has been some sort of persuasion. In this particular case, Mr Andrew pointed out to Ms J that the child was only nine and that she was a little bit immature for her age. Ms J accepted that but was still of the view that the child’s expression of wish was heartfelt, deeply expressing what she wanted. Ms J did not think there had been any undue influence or persuasion by the father in that regard.
Now, Mr Andrew also raised as important the factual issues surrounding the gift to C of a blue clipboard during the interviews. I feel obliged to say something about that at this point. The circumstances were these: Ms J reported that when C got to spend some time with Mr Linden and Ms O she was given a gift by them of a blue clipboard. When she showed that to her mother, Ms Mason, towards the end of the sessions, Ms Mason got pretty angry with her, remarking to her that she already had one at school and expressing some anger. The child got very upset about this and began to cry. Ms J, I think, noted it as in some way being a rather insensitive and inappropriate response to the circumstances by the mother.
Mr Andrew sought to make some capital on behalf of the mother out of the circumstances, suggesting to Mr Linden that he had effectively given the child the blue clipboard, knowing that her mother had told her that she was not getting a new one because of circumstances surrounding the breaking, or destruction of the board at school, in an attempt to encourage the child, or teach the child a lesson about caring for her possessions, not giving her another one. Mr Andrew put to Mr Linden that when the child then asked him would he get her one to replace it, he was deliberately undermining the mother’s parenting strategy by complying with that request. Now, Mr Andrew submitted that Mr Linden had accepted that effectively in cross-examination, and I assured Mr Andrew that I would go back and look at the transcript to see what had happened.
I did. In fact, I have had my Associate type out what the transcript said. I am going to read it out. In fact, Mr Andrew was partly right, but in the end I do not consider that the evidence, as it came out establishes the point that Mr Andrew was making as a result. It starts at 11.56 am on the day of the trial. The father says:
Not exactly sure. [C] had clearly asked me for a blue clipboard, so I provided her one. I don’t have much more to say about that, but yes, I did buy her one.
Mr Andrew:

Was the background to that she had a blue clipboard, or she had a clipboard and it had become broken or destroyed at school; is that right?‑‑‑Right.
Is that right?‑‑‑Right.
Yes?‑‑‑And she asked me to replace it. And I did. Yes, it’s a clipboard.
Well, I suggest to you that she’d been told by her mother – and you very well knew this – that she had to look after her property more carefully?‑‑‑Right. But the last one was broken, so she did not have one.
Can you please just answer my question, [Mr Linden]?‑‑‑Yes. I am, sir.
Well, you’re not responding to the question.
HIS HONOUR:   The question was, [Mr Linden], she had been told by her mother, and you very well knew it, that she had to take better care of her property?‑‑‑Right.
Is that correct?‑‑‑Yes. In the same ‑ ‑ ‑
MR ANDREW:   All right?‑‑‑There’s actually two aspects to that question. Just give me a second.
The two aspects of that question: (1) She had been told by her mother that she had to take care of her – better care of her things; do you accept that?‑‑‑Yes.
HIS HONOUR:   How do you know that she had been told by her mother?‑‑‑I’m just accepting that all parents tell that to their children, don’t they? To take better care of their stuff when they’re broken.
Well, the other part of the question was, “And you very well knew it.” That’s what I was just interested in particularly, how you very well knew that she had been told by her mother that she had to take better care of her possessions?‑‑‑Yes, take. Very well. Yes.
Are you just saying that you guessed that she had been told that?‑‑‑Yes.
Are you?‑‑‑About her clipboard? Yes.
No, no, no. I’m not talking about the clipboard at the moment. The question was a general question. You had been – she had been told by her mother, and you very well knew that she had to take care of her things, better care of her things?‑‑‑Yes. I’m saying yes. [The mother] does tell her to take better care of her things. Yes.
Yes. Well, how do you know that?‑‑‑[C] has mentioned it.
Yes. Okay, go on, Mr Andrew.
MR ANDREW: See, I suggest that you knew that the mother was trying to instil some values in [C] in taking care of property?‑‑‑Yes. Okay. But we’re talking about a $1 clipboard.
No, no. I don’t care if it’s $1 or $1 million.

And this is the relevant part, where Mr Andrew had actually put to him:
You knew that about this clipboard, didn’t you?‑‑‑Yes. It’s a clipboard that she needed for school. So I got her one.
Okay. So you knew?‑‑‑
HIS HONOUR: Just listen to him.
You knew that the mother was trying to parent [C], all right, to teach her the value of looking after things; correct?‑‑‑Okay.
Correct?‑‑‑Correct.
That was the message behind this $1 clipboard; correct?‑‑‑Correct.
So what did you do at the family report interview? Brought along the $1 clipboard?‑‑‑Yes. I did.
Why did you do that? For a start, what did you – what did you do that? Why did you buy the clipboard when you knew all of those things?‑‑‑Because she had requested one, and she needed the clipboard for school, so yes, I supplied another one.
I accept that Mr Andrew put to him that he knew that about the clipboard, and that he said yes. But I do not accept that that evidence establishes the point that Mr Andrew was ultimately making, that Mr Linden somehow deliberately tried to undermine the parenting strategy of the mother. As the father himself pointed out, we were only talking about a clipboard that cost approximately $1. The child broke one at school and needed it. It is not clear whether there had been any communication between them about whether this clipboard was to be replaced. It is not clear that the father knew that the mother was definitely not buying one because she was not going to replace it, and that he somehow deliberately then bought one for the child, trying to win the child’s favour.
I just can not make those findings on the extent of that evidence, so I am not prepared to make a finding along the lines of that submitted to me by Mr Andrew, that it somehow reflects a deliberate undermining of the parenting strategy by Mr Linden in respect of the mother. Although I do accept that because of the high conflict between these parties, there is a total absence of cooperation in respect of parenting, a total absence of cooperative parenting, and from time to time both parents are likely to be involved in things that might be considered undermining of the parenting strategy of the other, and that is, no doubt, to the detriment of the child. I am not prepared to make a finding that Mr Linden does that, or did that on this occasion, to any greater extent than does Ms Mason.
Now, I turn to the legal principles. The principles governing my determination in this matter are set out in the Family Law Act, section 65D of the Act, subject to 61DA – that’s the presumption of equal, shared parental responsibility – and 65DAB – that’s parenting plans – gives the Court the power to make a parenting order. A parenting order is defined in section 64B. In deciding whether to make a particular parenting order, section 60CA requires that I must have regard to the best interests of the child as my paramount consideration.
In determining what is in the child’s best interests I must consider the matters set out in section 60CC(2), the primary considerations, and section 60CC(3), the additional considerations. There are two primary considerations, the first being the benefit to the child of having a meaningful relationship with both of her parents, and the second is the need to protect a child from physical or psychological harm, from being subject to, or exposed to abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary. And a note to section 60CC indicates that they are consistent with the first two objects in Part VII, as stated in section 60B, that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and protecting them from physical or psychological harm, from being subjected to, exposed to abuse, neglect or family violence. Additionally, in section 60CC(3) there are 13 additional considerations.
I have to also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is inconsistent with the child’s best interests being treated as paramount. I will also be guided in the decision I make by section 60B which sets out the objects of Part VII of the Act and the principles underlying it.
I must now consider the application of the legal principles in the circumstances of this case as I have outlined them, namely, the background facts and the findings that I have made, and how they apply in determining what parenting orders are most likely to promote the best interests of C. If I can turn firstly to the application of the primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm, from being subject to, or exposed to abuse, neglect or family violence.
I say this: the orders that both parties propose will provide for the child C having a meaningful relationship on an ongoing basis with the other parent. I consider that that is appropriate in the circumstances. Notwithstanding what the mother asserts about domestic violence in the father’s household, I have made it clear what my findings are about that, and that I am satisfied that there is, on the balance of probabilities, no cogent evidence to support findings of domestic violence. I am satisfied that there is no domestic violence in the household that would cause me to consider that the child ought not to be placed there, either as the father says she should be placed there or indeed as the mother herself says she should be placed there; that is, every second weekend.
However, I am conscious of the need to protect C from harm, from being subjected to or exposed to violence as between her parents when she is being handed between them, and I will be making orders that minimise the amount of contact that the parents have with each other at handovers, consistent with orders that have previously been made in the case.
Both parents to their credit have, in recent times particularly, displayed total commitment to the child C, and it appears on the evidence that I have that both – and particularly the mother, who I find up until 2008 did not have much contact with C – has settled into a more appropriate parenting role in respect of C. I have no doubt about the depth and strength of each parent’s love for C and indeed I have no doubt that C loves both of her parents as well.
I turn to the additional considerations. The first one of course requires me to consider any views expressed by the child, and any factors such as the child’s maturity or level of understanding, that I think are relevant. Now, I have already dealt with the mother’s submission about this. I already dealt with Ms J’s evidence about this, which I said that I accepted. Ms J says in her last report:
[C] quickly made it very clear that she wants to live with her father. Indeed, she was quite emphatic about this. She said that she hadn’t told mum because she would get angry.
Then she goes on to say in paragraph 79:
Overall, I have formed the view that [C] was expressing a heartfelt wish to live with her dad.
I accept, on the evidence, that it is C’s heartfelt wish to live with her father. The mother says, of course, that C told her that she wants to live with her. That is indeed possible. I am not saying that that did not happen, that I do not accept that that happened. It is indeed possible that it did, but in the circumstances, it is not surprising that a child like C might say to mum, “I want to live with you, mum,” yet later in the circumstances as outlined by Ms J in her report, keep a secret, effectively, for the first part of the interview, and then come in and tell Ms J in a heartfelt way, “I really want to live with my dad.” So, in the circumstances, I accept that the child’s wishes, as conveyed to Ms J, were indeed that she wants to live with her father.
Notwithstanding the child’s age and level of maturity, Ms J made those wishes, and the expression of those views, I should say, those views and the expression of those views, one of the most important factors influencing her in her recommendation. Having regard to that, I accept that they are, and should be treated as one of the important factors in reaching my determination.
The next one of the matters that I must consider is the nature of the child’s relationship with each of its parents and with other persons. And in this regard, it has been submitted to me that the child is certainly bonded with her mother. Now, Ms J said in her evidence here in court that she was not confident that the child had bonded at all well with her mother. She was indeed troubled by that relationship and saw really nothing encouraging about the mother/daughter relationship when she saw them together.
That is pretty important and significant evidence, and when you consider the history of the case and particularly my finding that Ms Mason did not have a lot of contact with C in those years leading up to 2008 whilst at the same time C was having a lot of contact with her father, it is not surprising that Ms J might observe and opine that C was not as bonded with her mother as she was with her father. It is interesting that that was all observed only two months after the child had not seen her father for four months. Indeed, Ms J even opined that the mother’s actions in keeping the child from her father for four months might have misfired, and driven the child even further towards her father.
The mother’s evidence was that the bonding was greater now. That may be the case. It may be. But that does not persuade me that it is likely to be that much better than what Ms J saw at the time, in all the circumstances of this case. The other, of course, very significant point, and one of the things that has troubled me the most about the decision I have to make, is the notion that placing her in her father’s principal care as he asks for, removes her from living with her brother J most of the time. C has been raised with J and the mother says that the child C is very, very close with J.
Against that, I have got Ms J saying that which I set out before: that she did not observe a special closeness between the two siblings. She acknowledged that there might have been some explanation for that on the day, but still she was not overly impressed with the nature of the relationship, with the closeness of it. Ms J still stressed that it is more important to get the parenting arrangement right than the arrangement between the siblings.
I am satisfied that on the arrangement that I ultimately am going to put in place in this case that the child C will still get to see her brother J and that the relationship will be able to be continued on a meaningful basis in any event.
I have to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. This is a difficult one because of the evidence and findings I have made about the conflict and because of what Ms J observed about the history of conflict between these parties. However, what really impressed me in respect of this aspect is that Ms Mason showed by her actions in December ’09 through till when the matter came before the Federal Magistrates Court in late March of 2010 that she really was not very capable at all of facilitating and encouraging a close and continuing relationship between the child and the other parent. Her actions truly demonstrated that. Positively though, I must say, the evidence suggests that for the last 12 months – and I have not got any real evidence to the contrary - that the parties have actually worked around the parenting arrangements that have been put in place, and there has not been many complaints that one is trying to somehow freeze the other parent out. That gives me hope and encouragement in respect of the future.
I was also, I have to say, a little bit troubled when it became clear to me during submissions that the father and his wife were contemplating the likelihood of moving away from the suburb that they currently live in and that would put more distance between the child and her mother. I was a bit concerned about that aspect and what that demonstrates about the father’s capacities in this regard – his willingness and ability. However, I can make orders that deal with that, that prevent that from happening in such a way that disadvantages the child and I am not convinced that it shows that the father is incapable, or the father is unwilling and incapable of facilitating and encouraging the relationship between the child and the mother.
The father’s proposal, of course, will require a change of the child’s circumstances from the mother’s house to his house, principally, and separation from her other siblings over in her mother’s house. C has been living there, of course, now for over a year – about 14 months. That is simply because of the effluxion of time that this matter has been in the list awaiting trial. If other changes in the child’s life can be minimised, in my view, and relying on the opinion of the expert, Ms J, I think the child can and could cope, especially given that she wants to come and live with the father, with the change of moving across to the father’s house. I give as an example of minimising other changes in the child’s life the need for her to stay at the same school. I am going to take care of that in my orders.

To his credit, the father, who has expressed disappointment about not being consulted on the child being enrolled at and attending Brisbane Suburb 2, conceded that she is happy there now, and that he intends to keep her at that school for the rest of her primary, even though his other two children – I think, at least the older one of them – is attending a different private school in the area. Further, if I could just digress there, if she continues, as I intend for her to do, attending Brisbane Suburb 2, then she will also be at the same school - at least for a couple of years yet – as her brother, J, and will get to continue the relationship with him to the extent that she wants to in the playground at that school.
Given the orders that I am going to make, I do not see there is any difficulty in respect of the child spending time with and communicating with the other parent, so that consideration does not trouble me. Having regard to the matter I’ve got to consider in (f) – 60CC(3)(f) – that is, the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs, I have mentioned some of my concerns - some of the factual aspects of the mother’s circumstances - that cause me to find that, having regard to all of her other troubles in her life, and she conceded as recently as September/October she was having troubles coping, and her relationship had broken down. I consider that her capacities to parent C are probably not as good and are somewhat distracted from what they otherwise might be if she was living in a more stable household, that is, living with her partner, the father of the two young children.
I see that she is going to be diverted from purely concentrating on parenting matters while she tries to sort out the arrangements for parenting of her younger two children. The father has demonstrated, in my view, stability in his life over the last eight years. There is no suggestion that there is not ongoing stability in his marriage, and I find that he is in a position where he has a greater capacity to provide for the emotional and intellectual and physical needs of C than does her mother at the moment. I believe that some of the matters I have referred to also are relevant for me to consider under (i), that is, about the attitude to the child, and responsibilities of parenthood.
I have dealt with family violence. In my view the order that I have determined to make now is one that is less likely to lead to the institution of further proceedings in relation to C than the one that the mother proposes. Given the potential instability, or given the current instability in her life, and the potential, as Ms J pointed out, for more instability, I would expect there to be a greater probability of there being further proceedings in C's life if I was to accede to the mother's application.
Now, under section 61DA(1):
When making a parenting order… the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal‑shared parental responsibility for the child.
In this case though both parties effectively propose an equal-shared parental responsibility order, and, having regard to that, and the evidence that is before me, I do not consider that there is any reason why I would not make an equal‑shared parental responsibility order, and I intend to.
Having said that then I am required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time, and if not equal time then substantial, or significant time with each parent. Now, I have to consider firstly whether equal time is in the best interests, and, following the High Court's recent decision, whether or not it is practicable for the child to spend equal time with both parents.
I find that equal time would be practicable, but I certainly do not find that equal time is in the best interests of C. Neither parent suggests equal time. Both expressed the view to Ms J that equal time was not in her best interests, and on that point I concur with the parents. Given the high conflict between them I would not consider that an equal time order would be in C's best interests, and I turn straight from it.
Now, as to whether I should make an order that C spend substantial and significant time with - and it would obviously have become clear to all here that I intend to place her principally in her father's care - her mother, and whether that is indeed reasonably practicable.
Now, as I mentioned the other day, substantial and significant time requires time on a school day, as well as on weekends, and as well as in holidays. It requires time where a parent can be intimately involved in the day-to-day life of the child, involved in her school and those sorts of things. I have determined that it is in this child's best interests for her to spend substantial and significant time with her mother, and that it is reasonably practicable, given certainly the current living arrangements of the parties, for that to continue. I intend to make orders that provide for it.
I intend to make orders that the child continue to attend Brisbane Suburb 2 State Primary School. If the father and his wife then determine that they are going to move from the area they will have to do that against the context of existing orders that provide for the child to stay at Brisbane Suburb 2 School, and to spend substantial and significant time with her mother. Accordingly, having said all that I intend to make these orders, and I do.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest.

Associate:

Date: 24 February 2011

[2011] FamCA 350

24 February 2011

Key Legal Topics

Areas of Law

Family Law