Masson & Serban

[2024] FedCFamC1F 176

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Masson & Serban [2024] FedCFamC1F 176

File number(s):	TVC 1208 of 2018
Judgment of:	BAUMANN J
Date of judgment:	26 February 2024
Catchwords:	FAMILY LAW – CHILDREN – INTERIM – Best interests decision as to whom the child lives and spends time with – Where a final hearing is due to commence in several months’ time
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	39
Date of hearing:	26 February 2024
Place:	Townsville
Counsel for the Applicant:	Mrs Bassano
Solicitor for the Applicant:	The Rockhampton Law Practice
Counsel for the First Respondent:	Mr R Pack
Solicitor for the First Respondent:	Stevenson & McMamara Lawyers
Counsel for the Second Respondent:	Ms A Frizelle
Solicitor for the Second Respondent:	Keyworth Harris & Lowe Family
Counsel for the Independent Children's Lawyer:	Mr A George
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland

ORDERS

TVC 1208 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MASSON

Applicant

AND:

MS SERBAN

First Respondent

MS ALVIS

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	26 FEBRUARY 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That all previous Orders relating to the child, X born 2016 (“the child”) be discharged.

Parental responsibility

2.That the father and the Second Respondent maternal grandmother have equal shared parental responsibility for the major long-term decisions to be made concerning the child, including but not limited to decisions about:

(a)the child’s health; and

(b)the child’s religious and cultural upbringing; and

(c)the child’s living arrangements that would make it significantly more difficult for the child to live with or spend time with any of the parties.

3.That when the child is in their care, that party shall have responsibility for the day-to-day care and welfare decisions for the child.

Living arrangements

4.That the child live with the maternal grandmother.

5.That commencing Friday, 1 March 2024 and each alternate weekend thereafter, the child shall spend time and communicate with the father as may be agreed, but failing agreement from after school Friday (or 3.00pm) until before school (or 9.00am) Tuesday, with such arrangement to continue during school holidays.

6.That when the child is in the father’s care, she shall sleep at the paternal grandparents’ home.

7.That the child shall spend supervised time with the mother for two (2) hours each alternate Wednesday at times facilitated by the B Contact Centre, with the mother to pay the costs for the child spending time with her at the Centre.

Injunctions

8.That the father must not expose the child to his use of marijuana and the father must not consume marijuana whilst the child is in his care.

9.That the father must not consume alcohol to excess whilst the child is in his care.

10.That the child not be brought into contact with the child C without the presence at all times of the father.

11.That the child not be brought into contact whatsoever, either direct or indirect, with Mr D.

Communication and authorities

12.That the parties keep each other informed of an email address to discuss any matters relating to the child and shall notify each other within forty-eight (48) hours of any change of contact details.

13.That the parties notify each other by email as soon as practicable of any matter relating to the health or wellbeing of the child which requires the attention of a medical practitioner or allied health professional (save for common colds, minor injuries and such like), and provide to each other the name and contact details of the medical practitioner or allied health professional treating the child.

14.That this Order is sufficient to authorise any doctor, hospital, counsellor and/or allied health professional by its appropriate officer, to furnish each party with any requested information concerning the child’s welfare, with the requesting party to be fully responsible for the cost associated with such request.

15.That pursuant to s 121 of the Family Law Act 1975 (Cth), the mother be granted leave and shall provide to her treating health professionals a copy of the family report prepared by Ms E dated 2 November 2023 and the psychiatric report prepared by Dr F dated 30 June 2023.

16.That the father forthwith complete the “Men Choosing Change Program” facilitated by G Family Services, or such other similar program as deemed appropriate by the Independent Children’s Lawyer.

17.That these proceedings be adjourned for Case Management Hearing at 9.30am on 4 June 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Townsville.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Masson & Serban has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. For reasons which the parties understand, it has not been possible today to commence a trial that was listed to deal with parenting arrangements for child X who was born 2016 and is now seven years of age.  In short, those reasons include the fact that the maternal grandmother significantly changed her case, I find, by way of an amended Response effectively two days before the commencement of trial.

2. Furthermore, in an affidavit she filed (also late) that went for 286 paragraphs, a number of more recent but certainly historical issues are raised.  Some of the issues need to be the subject of response. 

3. In respect of that, certainly the father has not, on the face of his most current affidavit, been entirely frank about recent events in his household, including a recent visit to a Magistrates Court dealing with a drug offence for which no conviction was recorded.

4. The biological mother who has been, in many ways as a result of her incarceration and failure to be able to be released from prison due to the vagrancies of the Queensland parole system, also filed an affidavit that was late but exhibits less than full disclosure.  In particular, the mother did not give anything like the required details a Court needed to assess the best interests of the child, X.  Where the mother has chosen, as she is perfectly entitled to do, to undertake a procedure which involves both medical and therapeutic support, the fact that the Court could not begin the trial today is a great pity and a great cost to Legal Aid Queensland.

   BRIEF HISTORY

5. The father, Mr Masson, is 38 years of age.  The mother, Ms Serban is 32.  They met in 2015 and X was born in 2016.  They separated in 2017 when X was but a baby.  In late 2017, the mother seriously assaulted the father’s child of an earlier relationship, J, who was born in 2007 and therefore in 2017 was 10 years of age.  As I say, the parties seem to have separated by that stage and the child X continued to live with the mother, notwithstanding the father’s Application in September 2018 and various Orders that were made.  The father entered a new relationship some time in 2019 which bore a child, H, who was born in 2020.  She is now approaching her fourth birthday.

6. The mother’s mother, Ms Alvis, sought leave to intervene in the proceedings and was given that leave in May 2020 and relevantly, shortly thereafter a Senior Judicial Registrar made Orders that if the mother was imprisoned, then the child was to live with the maternal grandmother.  In mid-2020, the mother was sentenced to a term of imprisonment, and although the parole period was to begin from mid-2021, she was not actually released from prison until 2022.

7. Since the time the child has been living with the maternal grandmother, there have been a number of allegations made, including allegations the father sexually abused the child, and other issues that the grandmother, as I shall call her, with the primary care of the child, had raised generally by Applications in a Proceeding.  Ultimately however, on or about 16 November 2020, the matter having been transferred to Division 1, I made Orders for the father and the maternal grandmother to have equal shared parental responsibility; for the father’s time to commence as supervised time at the B Contact Centre progressing through a regime such that it would end up with the child spending time with the father in week one from 2.30pm Wednesday until 5.30pm Friday and then from 2.30pm Wednesday to 5.30pm Saturday in the following week.

8. There are further difficulties in these arrangements that caused me to restate in my Order made 13 May 2021 (nearly three years ago), that those arrangements were to remain in place and be maintained.  As I say, the mother was released in 2022.  Sadly, her parole conditions were an impediment to her beginning any form of contact with X despite her desire to do so.

9. The mother was the subject of a psychiatric assessment by an independent psychiatrist and the parties undertook interviews with family report writer, Ms E on 28 and 29 September and 3 October 2023 through the agency of the Independent Children’s Lawyer, resulting in a report dated 2 November 2023.

10. There had been, as I say, other Applications that had been made because of an interruption in time with the father – a unilateral decision of the grandmother because of her concerns about risks earlier.  My earlier Orders continue ultimately to preserve the current arrangements.

11. The Independent Children’s Lawyer however brought an application seeking orders preventing the child from being brought in contact with a Mr D, as a result of subpoena material inspected, I infer, sometime before the Application was made about an incident and other allegations arising from that incident in late 2023. It caused me, on 27 November 2023, to make an injunction restraining X from coming into contact with Mr D. I listed the matter for trial with proper recognition of the effects of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) and made trial directions.

12. As I say, sadly, but for reasons which to some degree I can understand, the trial material was both late and voluminous; in many ways unhelpful and not dealing with the issues in question, and certainly to some degree, not fulsome.  It became obvious today, as a result of the application by the maternal grandmother contained within an amended Response which appears to have been filed according to the Court record, at 4.42pm Friday 23 February, that the grandmother believes it was in the interests of the child that the father’s time with the child now be supervised – as I say, a significant departure from the arrangements the child has experienced in that form, since at least May 2021 if not earlier.

13. I indicated to the parties that the trial would have to be adjourned and as the grandmother, represented by experienced Counsel Ms Frizelle, pressed for a change in the interim arrangements, we would need to conduct an interim hearing today, as it is apparent that this matter cannot return to the Court for at least some six months, if in fact the mother’s application is to be heard at the same time as the other competing applications between the father and the grandmother.

    INTERIM HEARING TODAY

14. The interim application was in two forms.  Firstly, the maternal grandmother seeks on an interim basis a variation to the current interim Orders so as to contain, in effect, the provisions set out in the Response at paragraph 8 (in effect, two hours a fortnight supervised time at the B Contact Centre) with the conditions that follow at paragraphs 9, 10 and 11 and that subject to orders 14 to 22 the child shall spend time with the father in a two week cycle a most in the regime that currently exists, but with the inclusion of Father’s Day.  The grandmother urged the Court to make orders consistent with her Response on an interim basis that the father undertake hair follicle testing and carbohydrate-deficient transferrin (“CDT”) testing as prescribed at proposed orders 14 to 22.

15. The position of the maternal grandmother is supported by the mother.  Her Counsel, Mr Pack, articulated to me the concerns that her mother has about the father.  The fact that these two ladies do not like the father would be no surprise to anybody.  It is obvious in the way they have prepared their material.

16. Counsel for the father, Mrs Bassano, opposes the amendment to supervised time, and says it is inappropriate.  She urged the Court to consider a block period of time so as to reduce changeovers and to allow the child, X, to spend time on the weekend with the father and the paternal family, where he currently lives, being in a block from after school Thursday to before school Tuesday – effectively maintaining the five-night regime.

17. Experienced Counsel for the Independent Children’s Lawyer, Mr George, had the benefit of hearing the exchanges between the Bench and the parties and the exposure of the arguments for and against variations.  In his brief but considered submissions, Mr George began by saying he did not seek to persuade me that we should move to supervised time again.  I prefer to take that as an indication that it was the Independent Children’s Lawyer’s position that supervised time was not in the best interests of the child.  He did offer an alternative proposal at this time.

18. For the reasons he articulated, he said that he agreed that there be a block of time and that the block of time be reduced.

19. I made it clear during the course of these submissions this afternoon that it is necessary in this truncated hearing (that is the nature of interim hearings) to weigh up the ongoing benefit the child gains from having the opportunity to spend time with the father and the paternal family (and at times her little sister H and at times, perhaps less likely now, in the future her older sister J) with the asserted risks.

    RISK ISSUES

20. The risks that concern the maternal grandmother and the mother, of course untested, were identified to be identified as follows, in my view:

    Drug use

    (a)The father says, and I infer the grandmother and the mother both well know, that he has been a habitual user of marijuana.  Whether it is, as he claims, for the effects of having a medical condition or something which, it seems the grandmother now says, after all these years, is merely a concerning addiction, is a triable issue.  There is no doubt in my mind that using marijuana has been a part of his behaviour for years.  Marijuana is a habitual product.  With a lot of effort and therapeutic support, the Court is aware that a person determined to no longer use a substance (which unless prescribed) is illegal for its use and possession can cease using marijuana;

    (b)The father demonstrates no desire to stop using marijuana.  At the trial there may be better evidence about some medical basis for that but there is nothing before me at the moment.  But in my view, it is hardly a new issue.  The fact that he has not submitted, if he had been requested to do so, to hair follicle testing and is being asked to do one now, in my view, is a waste of money and time because we know what the result will be.  I do not accept necessarily that hair follicle testing will enable us to establish the extent to which he uses marijuana, when he used it, and the quantities he used.  It will show he used it;

    (c)To a large degree, it seems his drug use has been a private activity.  He says, and there is some evidence to support this, that he generally uses marijuana in the absence of X; maybe not so much J, who has also taken up the use of drugs in some way.  The father may well ask whether his behaviour has influenced his daughter’s behaviour in that regard;

    (d)Be that as it may, a consequence of the events of late 2023, when the father, in an intoxicated and drunken state, was in an accident are very concerning.  The other person involved was apprehended by police who, through X, trying to find his mobile phone, enabled the enquiring police to see utensils used for the consumption of illicit substances being Marijuana.  The father was ultimately charged.  He says nothing about this in his affidavit.  He should have.  His failure to disclose it may raise further issues as to whether he can be a reliable witness.  Nonetheless, we now know that he was convicted of the charge, with no conviction recorded; required to pay a fine and to attend a drug diversion program which I am told from the bar table involves some form of two-hour online course;

    (e)That sentence was imposed late 2023, but really did nothing more than confirm what the mother, and in my view the grandmother in this case, well knew about the father’s use of drugs.  Having him, as I say, do a hair follicle test now would be a waste of time and money.

    Alcohol use

    (f)The father admits he likes to drink.  There are snippets of evidence where he is drunk to excess.  They include some testimony given via an interview, if you like, by Mr D, who I would regard as a witness of little credibility and hard to accept he says.  Anybody who is a registered offender and engages in a relationship with a child of J’s age, deserves little respect.  Nonetheless, the father is said to have been aware of some of the past behaviour/criminal conduct of Mr D by turning a “blind eye” to his relationship with his oldest daughter (if found to be true), which could be a very significant issue as to his parental attitude.  He needs to reflect on that;

    (g)There is no doubt the father was highly intoxicated in late 2023.  There is no doubt that the child, X, has seen him affected by alcohol.  However, there is little other data available to the Court at this stage since the unsupervised time began in earnest at least three years ago, that this child has been exposed to excessive alcohol use by the father in his home.  I am not satisfied that CDT testing will be of any forensic benefit.  The father must, however, consider his relationship with alcohol and whether as a role model for his young daughter and as to a trigger to some of his behaviours to which I will now turn, he can find a better use of alcohol as has been the case in the past.  He can rest assured it will be a matter of significant cross-examination at the triall

    Family violence

    (h)Family violence widely defined now under the Act, however it is, for children, one of the most destructive environments they have to endure. Violence from a parent towards them is of course something that J had to endure. There is no evidence at this stage that X has been the subject of violent behaviour by the father towards her. There is plenty of evidence now that there are conflicts in the paternal household which may well have been occurring at a time when X was in the home. It seems from what she has said however to the report writer, that they have not left an indelible mark upon her at this stage. That might be because she saw them just as behaviour to which she has become accustomed;

    (i)In the home of her maternal grandmother, X speaks about the abuse and fighting, well beyond normal child-like antics, she endures from her older brothers.  Her grandmother does not really deal with those issues in her affidavit as a serious concern.  X has had to experience the breakdown of the father’s relationship with Ms K; the effects of Ms K’s son, C, perhaps acting inappropriately with her in a way that she now acknowledges is inappropriate.  Sadly, and more recently, as the events of late 2023 identified, she may have experienced generational conflict between the father and her grandfather, in the household.  Whilst the paternal grandmother has provided the Court with an affidavit supporting her son and supporting a greater relationship between the paternal family and X, there is no evidence from the father’s father.  If these men cannot control their relationship in a way that does not create conflict, aggressive behaviour and inappropriate words and actions in the household and potentially in the presence of this little girl, then sadly, whilst the father continues living in that home as it seems he must because of his financial circumstances, the time that the child may ultimately spend with the father may be reduced because of that risk;

    (j)The sad reality about parental conflict is that parents have the capacity to control their actions and reactions.  When they cannot do so or they allow violence to be exhibited to and expose a child to that, the damage to that child, their self of worth, sense of whether they are to fault, and in just uncomfortableness, is at a level that children, especially as young as little X, should not have to deal with.  The parents will need to do better.

1. However, I am not satisfied, when I balance the obvious effect that a significant reduction of time that would flow from the grandmother’s proposal (supported by the mother) will have, that it is in the best interests of the child to impose supervision again now.  In making that decision and giving some signification weight to the child’s past experience, I reflected on what she told the report writer as recently as September last year.

   VIEWS EXPRESSED BY THE CHILD

2. For the sake of these Reasons, I identified that at paragraph 152 of the family report:

   [X] stated she used to live with her mother who did bad things and had to go to jail.  [X] stated her brothers do not visit her mother anymore and she lives with Granny ([Ms Alvis]), [Mr L] and her brothers who […] saw “everything” that Mum did.  [X] stated she feels “surprised and downhearted” about her mother doing those things. 

3. She clearly feels comfortable living with her grandmother, but when asked (as recorded at paragraph 155) about her father she was recorded as saying “she sees [Mr Masson] every Wednesday, but ‘granny couldn’t see him’, but she did not know why and said to ‘ask my real dad’, indicating [Mr L]”.  Why this child would call Mr L her “real dad” and why she calls her biological father Mr Masson might be a matter further examined at the trial.  Courts are not generally concerned about what children call an adult who is close to them, but the information in that statement is at one level concerning.

4. At paragraph 159, X is recorded as saying that:

   the things she likes about [Mr Masson] are that he lets her eat food in his bedroom and watch videos and movies with snacks.  [X] stated she also likes that [J] put the “kitty game” on the iPad for her.  [X] stated there was nothing she did not like about [Mr Masson] he is “pretty nice to me” and that she gets to ride a bike there. 

5. At paragraph 160, she went so far as to say in her seven-year-old view of the world, that it would be nice for granny, Mr L and Mr Masson and her paternal family to live together.  Those sorts of statements that the Court often hears reflects the fact that she is aware of the conflict in the family, that she loves all these people and that she thinks the answer would be to all be in the one house.  Obviously this is something which will never occur.

6. At paragraph 162, X is recorded as stating that she “likes that [Ms K] is always there to ask if she needs something and that Ms K likes to ‘look after me’”.  I took this to be a reference to Ms K, but it is not clear who it was really referring to. 

7. At paragraph 166, the report writer records:

   [X] had an extremely good understanding of safe and unsafe for her age, as well as help seeking behaviour.  [X] stated that the only time she does not feel safe is with her brothers as […] pushes her over and she banged her head on the trampoline.  [X] stated that she had no worries when she stayed at either [Ms Alvis’s] or [Mr Masson’s] home.  [X] then stated, “I can’t decide”, who she would like to live with and she wants to be with both [Ms Alvis] and [Mr Masson]. 

8. I am not prepared to take the risk with this child, who has been through so much, that by reducing the time that has been in existence for over three years (which, on the face of it, she enjoys) that flow from a reduction to two hours a fortnight.  Her long-term relationships with the father and paternal family would not be very significantly diminished.  I am concerned about how such a reduction in time which could continue (because the other issues that we discussed today) for at least six to nine months, could manifest in the child’s view of her relationship with her father and paternal family.

9. I do however agree with the Independent Children’s Lawyer that the risks I have identified are best ameliorated by there being a period of block time so that the father, and if necessary, the paternal grandparents, can do their very best during the time the child is in their care, to behave themselves – to not drink to excess – to not fight – to not demonstrate aggressive adult behaviour.  If they cannot do that, of course, the father’s ultimate position which before the start of the trial today was for a week about position, is even more unlikely than his optimistic position today.

10. I am aware that the paternal grandparents have been in court during the submissions and during this Judgment.  It is by design that that is the case.  They must take some responsibility for their granddaughter as well, although there are no court orders affecting them.

11. I propose to vary the arrangements so that the child will spend time with the father from after school Friday to before school Tuesday each alternate week and that that time will continue during school holiday periods.  This will enable the father to continue to play a role in integrating with her school.  The fact that it is one night less a fortnight is really not the issue.  The issue in my view is that he will be able to maximise the opportunity to spend time with the child, including recreational time, for this school-aged child.

12. I reflect that when the Orders were initially made by me in November 2020, the child was not at school.  She is now.

13. I will invite the Independent Children’s Lawyer to review the earlier Orders because I will incorporate in these orders injunctions which I have previously made, or have been made by other judicial officers, so that it is one document.

14. The child is not to be exposed to the father’s use of marijuana and he shall not consume marijuana whilst the child is in his care.  I accept as a daily user of marijuana; that will be difficult.  In my view, this child should not be exposed to that use.

15. The father shall not consume to excess alcohol while the child is in his care.

16. The child should not, of course, be brought into contact with Mr D.  I am prepared to maintain an earlier injunction I made in relation to C but in the terms shall be that the child X shall not come in contact with C without the presence at all times of another adult, being the father.  I do not want this case to be a character assassination of little C.  I do not know anything about him.  He is seven.

17. X has explained that she feels uncomfortable about some of the actions of C and weight must be given to that.  It is not realistic, however, where X should have the opportunity to spend time with her sister H, to anticipate that C will be able to be removed from that situation.  It is just unrealistic.  But he must be watched in his interaction with the child, X.  Simple as that.

18. The order should include an earlier order made that the child shall, when in the care of the father, sleep and remain at the home of the paternal grandparents – whatever address that is, and that is a very important order.  To the extent that it might have been, it is alleged, breached earlier, is a matter for the trial, but it is, in my view, a very important protective measure, particularly that the paternal grandmother is at that home on the nights that the child is with the father.  I know that is restrictive and prevents the father from perhaps taking the child and spending overnight with his sister or friend or going on a holiday.

19. The orders at the commencement of these published Reasons, on an interim basis, are in X’s best interests.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       27 March 2024