Mason and Harper - [2010] FMCAfam 1030

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASON & HARPER

[2010] FMCAfam 1030

FAMILY LAW – Parenting dispute – mother subject to mild intellectual disability – substantial Department of Human Services involvement – children living with father for over four years – orders made as sought by Independent Children’s Lawyer.

Family Law Act 1975, ss.60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 66CC(3)(l)

Fooks v McCarthy (1994) FLC 92-450
SDW v JCL (2005) FMCAfam 210
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Applicant:

MR MASON

Respondent:

MS HARPER

File Number:

MLC 7377 of 2009

Judgment of:

Burchardt FM

Hearing dates:

30 & 31 August 2010

Date of Last Submission:

31 August 2010

Delivered at:

Melbourne

Delivered on:

30 September 2010

REPRESENTATION

Counsel for the Applicant:

Ms C. Brookes

Solicitors for the Applicant:

Victoria Legal Aid

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms J. Spehr

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7377 of 2009

MR MASON

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

Introductory

Although there are a number of related and subsidiary issues, the primary issue in dispute in this case is about the parenting arrangements for [X], born [in] 2002, and his younger brother, [Y], born [in] 2004.
The children have been living with the father since May 2006 and the father wishes them to continue to live predominantly with him but to spend time with the mother.
The mother’s position, by contrast, is that the children should live predominantly with her and spend time with the father.
For the reasons that follow I will make orders consistent with the position contended for by the Independent Children’s Lawyer which is that the children should live predominantly with their father and spend time with the mother.

The facts

The father was born [in] 1972 and the mother [in] 1979. Neither parent is in employment although the father plans to take up part-time work when he is able, given that [Y] is now at school.
The parents lived together in a de facto relationship for approximately two years living in various states, ultimately moving to Melbourne. They separated when [X] was approximately 12 months old and never lived together again thereafter. They did try to reconcile on one occasion during which [Y] was conceived.
The father concedes that he has had a long term drinking problem but says that he does not now drink when the children are in his care. He drinks reasonably heavily but arguably not to excess on the weekends that the children spend with their mother.
The father also accepts having had a problem with illicit drugs in the past but says that he has been clean for some years. There are issues between the parties as to historical drug use but they are not now in my view of any significance. I accept that neither parent now uses illegal drugs.
There is some disagreement between the parties as to how it happened, but there is no question that there has been extensive and lengthy Department of Human Services (“DHS”) involvement with the family. It is likewise clear that since May 2006 the children have been living predominantly in their father’s care. The mother says that the children lived predominantly with her before then.
On 5 December 2006, following a five-day hearing, the Children’s Court of Victoria made orders that the children live predominantly with the father. The Court’s reasons for decision, which are annexed to the father’s affidavit filed on 20 August 2009, say, under the heading “Disposition”:
“This is an unusual case in that the father, who was previously unable to parent his children, has now looked after his sons for a six-month period, and is offering to do so permanently. This offers them greater stability than foster care as long as his sobriety and his new relationship continue. Though Ms Harper had previously been the children’s primary carer since birth their care now requires greater insight and flexibility than previously. Ms Harper will struggle to mange (sic) their behaviour appropriately and she will struggle to anticipate and recognise their emotional, intellectual, and physical needs.”
By a letter dated 6 July 2009, likewise annexed to the husband’s affidavit, the Department of Human Services expressed support for the father’s position. The letter made a number of observations, including:
“The Department of Human Services have had extensive involvement with this family, in both Victoria and New South Wales since 2003. This involvement is in relation to Ms Harper inability to care for [X], [Y] and her two other children on a full time basis. Ms Harper has in the past been provided with numerous support services to assist her with her parenting and the daily care of her children; however, she has been unable to sustain any long term change and this has resulted in her children being removed from her care.
Ms Harper has an intellectual disability which has an impact on her ability to retain information and make the necessary changes in relation to her care of the children.
The Department of Human Services would be extremely concerned if [X] and [Y] were returned to the full time care of their mother Ms Harper.
Mr Mason has been sole caregiver for [X] and [Y] since December 2007, after his relationship with his then partner

Ms B broke down. Mr Mason has demonstrated his commitment to his children and his ability to meet their day-to-day needs. Both children have a strong attachment to their father and have benefited from the stability he has been able to provide.”
By her affidavit filed on 18 September 2009, the mother made a number of criticisms of the father as a carer, including drunkenness, hitting the children, anger problems, and the children not attending school. The mother expressed concern that the father might seek to relocate to Queensland. This last concern has proved to be completely unfounded as the father has no intention of so moving.
The Court has had the benefit of a psychiatric report, annexed to the affidavit of Dr K affirmed on 6 July 2010. This affidavit was received without challenge and all parties, including most particularly the mother, indicated that they did not seek to cross-examine Dr K.
Dr K, who is a forensic psychiatrist, said, inter alia:
“I note there is reference to her as having had some assessment

(I think in September 2006) indicating that she is mildly intellectually disabled. I have to stay that’s perfectly consistent with the impression she makes in interview.
I note that she is thirty; she presents as a very immature 30 year old and really quite limited intellectually.
I must say I could not get a clear description of circumstances and incidents from her. She denies ever having had any psychiatric or psychological treatment, denies ever having any nerve tablets or antidepressants, gives no evidence of ever being psychotic.
But she presents as an immature young woman of limited intellectual ability with but little insight into the situation in which she now really finds herself.
Having said that I would not consider that on a psychiatric basis I would be able to say that she would not be a reasonable parent.
I don’t see that she is going to change. I would be quite astonished if she’s changed significantly since DHS were first involved.
I really couldn’t see her as being capable of looking after children satisfactorily on a full time basis.”
The Court has also had the benefit of a family report prepared by

Dr O. In summary, Dr O has recommended that the children continue to live predominantly with the father and spend time with the mother. I should make it clear that I have had regard to the entirety of Dr O’s report, although I will quote some selected passages from it. Dr O attended for cross-examination and in my view was an impressive witness whose evidence was given with the authority of her professional experience and which, I should make it plain, I entirely accept.

At paragraph 41 Dr O said:
“Ms Harper appeared to be extremely fixated on her desire to have [X] and [Y] returned to her care, she stated repetitively that that was what she wanted, and that she had changed, and that DHS were focussed just on history and not what she had done, and she was different now. Unfortunately, despite these assertions, Ms Harper was unable to provide specific examples of how she would do things differently, other than to detail courses that she had attended and that she would not hit the boys now. She acknowledged her previous discipline was “a mistake.” She was however, unable to provide any detail as to alternatives to difficult behavioural scenarios or understand that methods may need to change as the boys mature.”
At paragraph 43 Dr O continued:
“It would appear from assessment of Ms Harper that her verbal expression is significantly more complex than her capacity for comprehension, and in some ways her presentation may belie the true extent of her cognitive deficit.
Ms Harper is adamant that she does not have an intellectual disability, and that she would not be able to provide any parental care if she in fact did have an intellectual disability. She appears to lack any significant insight with respect to her capacity to care for the children. At any attempt to get her to discuss her previous history with respect to the care of [X] and [Y], and the care of her two younger children, who have also been subjected to DHS Intervention and Accommodation Orders, Ms Harper became evasive and maintained that that was history, and that she did not want to focus on history, she wants the department to focus on her capacity to parent now, and not the history of intervention through DHS.”
At paragraph 46 Dr O continued:
“Overall Ms Harper’s presentation would appear consistent with that of her recent psychiatric examination whereby she demonstrated significant difficulty in understanding the extent of her own limitations, and difficulty in expressing the needs of the children. Consistent with Dr K’s report, Ms Harper remained focussed on what she said that she had lost, and stated her intention that she wanted the children returned to her care. Also consistent with Dr K’s findings reported in his recent psychiatric report, Ms Harper did not present with any significant evidence of mental health difficulties, she did look significantly younger than her chronological age, and was lacking in developmental maturity.”
At paragraph 58 the report stated:
“[X] and [Y] reported equally that their mum uses physical discipline and yells at them. When asked about issues of feeling safe, security, telling secrets and the like, both boys answered positively with a preference to Mr Mason on every occasion, suggesting that they feel significantly safer and secure in his care and home environment than they do with Ms Harper.”
At 64 Dr O reported:
“Consistent with previous reports, DHS reports, subpoenaed information, and in particular Dr K’s recent psychiatric report, it is the writer’s opinion that Ms Harper presents in a manner that would suggest she is unable to provide a safe and secure environment in which to provide care for [X] and [Y].”
At paragraph 89 Dr O stated:
“It remains of grave concern that, despite the extensive history of DHS intervention, numerous unsuccessful applications and a significant number of assessments by various professionals, and that Ms Harper has been deemed to be unable to adequately provide for the care of [X] and [Y], and despite this history and due to her inability to accept alternative arrangements for [X] and [Y]’s care, that she continues to pursue legal avenues to regain primary care of the children.
Any strategies that are able to be put in place that would limit ongoing court applications are in the writer’s opinion in the best interests of [X] and [Y], as the ongoing uncertainty and instability continues to compromise their mental health and wellbeing.”

The evidence given at the trial

The father was called to give evidence, and I shall say straight away that he was an impressive witness. His answers were candid and directly responsive. He readily conceded matters against himself, such as his past excessive consumption of alcohol. I accept that he does not now drink when the children are in his care, and I accept that the only exceptions have been on his birthday and at a Christmas barbecue. I likewise accept his evidence that the absence of children at school has been due to genuine ill health caused by colds and the like.
The father readily admitted one incident when one of the children had been injured in his care, and while his lack of attention is concerning, nonetheless it was a momentary inadvertence for which he has expressed an entirely appropriate measure of contrition.
His evidence that he had threatened the children with boarding school as an endeavour to discipline was admitted candidly, even though as an initiative, it was clearly wildly misconceived.
He confirmed that he would not be moving from Victoria.
Under cross-examination by the Independent Children’s Lawyer he confirmed that changeover takes place either at [B] station or at his home. Neither parent has a car (the father’s driving licence is presently suspended for drink driving offences), and he prefers that the children should be picked up at 4.30 pm when they finish school at 3.15 pm.
When the mother was called to give evidence, she confirmed that she would not change the children’s school in the event that she was to become the primary carer. It should be noted that she lives approximately 45 minutes from the school by public transport.
The tenor of the mother’s evidence was in fact consistent with the observations of Dr K and Dr O. She said that she disagreed with DHS and that she has improved over the years. She is plainly, very eager to have the children predominantly with her. She said words to the effect that, “I think I deserve a second chance. I’ve changed, what more can I do?”
The mother also says that the children run away into their bedroom when it is time to go to the father. She said she just wants to have them home with her.
While the mother’s evidence was given cogently, I accept the evidence of Dr O that the mother’s apparently impressive demeanour masks a lack of insight.
These children have been living with their father for some four years without any significant untoward adverse effects, other than the sort of usual bumps and illnesses to which children are so notoriously prone.
Dr O was called to give evidence and as I have said she withstood any challenge to her opinions effortlessly. She confirmed that she found the mother very concrete in her thinking, with no understanding of, for example, the sort of difficulties that 45 minutes’ travel to school each day might impose upon the children.
It should be interpolated that the mother does propose to relocate to the [B] area closer to where the children live, but plainly she has not thus far been able to do so.
Dr O confirmed that the boys want the current regime to stay in place, and that in her view, the mother would not be able to cope with having the children live with her full time.
Dr O went on to say that the boys have been over-interviewed, and that the Court process is itself in danger of becoming a form of abuse for them.
I will now turn to deal with the various issues that the case has raised.

Parental responsibility

Joint parental responsibility has been recommended by Dr O and the Independent Children’s Lawyer, and both parties seek it. In these circumstances, I will order that that be the case, notwithstanding that it is clear there has been family violence imposed by both parents within the extended meaning that this phrase has in the Family Law Act 1975 (“the Act”).

With whom the children live

Neither side seeks that the children spend equal time, and in the circumstances of this case, it is plainly inappropriate to make such an order.
The question is clearly initially which parent should be the primary caregiver.
In this regard, both parents seek orders that would promote a meaningful relationship with the parent with whom they do not primarily live.
There is clearly a need to protect the children from physical and psychological harm, and the orders I will make will do the best that can be done to promote those objects.
Turning to s.60CC(3) of the Act, I would regard the following matters of being of particular relevance.
The children have expressed clear views that they wish the current regime of living predominantly with their father to stay. Although they are only eight and six years old respectively, those are views to which I must give some weight (s.60CC(3)(a)).
The children have an excellent and well-established relationship with their father, but their relationship with their mother is far more complex and difficult. So much is clear from the father’s evidence, but more particularly from the evidence of Dr O (s.60CC(3)(b)).
Both parents are prepared to facilitate a close and continuing relationship between the children and the other parent. The father’s evidence in particular in this regard was impressive (s.60CC(3)(c)).
The children would likely be extremely traumatised if they were to move from the predominant care of their father, with whom they have lived for the last four years. This is more particularly so given that the evidence leads overwhelmingly to the conclusion that the mother, despite her views to the contrary, would not be able properly to care for them, and indeed would be likely to resort to shouting, if not physical discipline, were this to be the case (s.60CC(3)(d)). If the children were to live with the mother where she now lives, attendance at school, at the very least, would be extremely difficult (s.60CC(3)(e)).
In the light of the report of Dr K and the report of Dr O, taken in conjunction with the DHS material, it is clear that the mother could not provide properly for the needs of the children, were they to live with her full time (s.60CC(3)(f)).
Unfortunately, there seems to be a consensus of informed professional opinion to the effect that the mother’s mild intellectual disability and concomitant immaturity makes her an inappropriate person to be the predominant carer (s.60CC(3)(g)).
The father has displayed in the ultimate a very positive and appropriate attitude towards his responsibilities as a parent. The mother, however, by making the repeated applications to which Dr O has referred, shows the lack of insight in this regard commented on by both

Dr O and Dr K (s.60CC(3)(i)).
Unfortunately, both parents have, in the past, disciplined the children physically (s.60CC(3)(j)).
It is to be hoped, however optimistically, that this judgment and orders will inhibit the institution of further proceedings (s.66CC(3)(l)).
In the light of all of the above matters, and most particularly the professional evidence of Dr K and Dr O, it is overwhelmingly clear that the children should remain with their father as the predominant carer. Further, this was the position contended for by the Independent Children’s Lawyer, and there will be orders in the form that the Independent Children’s Lawyer has sought.
The only other matter of dispute as to the spend time regime was whether time on a Wednesday should continue. In my view, time should continue on a Wednesday, but not during the months from May until August. The father’s opposition to the children spending evening time with their mother on these occasions is simply related to the coldness of that time of year, and in my view, this was a reasonable reservation on his part. It was supported by the Independent Children’s Lawyer.

The issue of birth certificates and the names of the children

The father has sought that the birth certificates of the children, which do not list him as their father, be altered to reflect his parentage. This is to be at his own expense.
The mother, who apparently deliberately failed to include the father’s name on the birth certificates, did not in substance oppose this aspect of the application. I will make such orders as the Court can to facilitate this outcome.
So far as name is concerned, the children at present have only the name of their mother. The father seeks that their names be changed to Mason, with Harper as a middle name. In the alternative, he seeks that their names be hyphenated as Mason-Harper.
The mother opposes the application.
It is well established that, as Warnick J said in Fooks v McCarthy (1994) FLC 92-450, “There is only one principle, that is, the welfare of the child as the paramount consideration. It stands above the wishes of the parents.”
In SDW v JCL [2005] FMCAfam 210, Ryan FM (as her Honour then was) elaborated a number of issues frequently considered in determining whether there should be any change to a child’s surname. They included:
·Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
·Any confusion of identity which may arise for the child if his or her name is changed or not changed;
·The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
·The contact that the noncustodial parent has had and is likely to have in the future with the child;
·The degree of identification that the child or children have with their noncustodial parent; and
·The degree of identification which the child or children have with the parent with whom they live.
I note that Dr O has recommended that [X] and [Y] be permitted to adopt their father’s surname, and that necessary arrangements be made by both parties to ensure that [X] and [Y] are able to be known as Mason-Harper.
Given that the children live predominantly with their father, that they are now at school and that increasingly there will be issues as to their enrolment in various activities, and in the fullness of time of course in various forms of licence and/or passport applications and the like, I think that I should adopt the recommendation made by Dr O. The necessary orders to change the children’s name will be made. In my view, in the circumstances I have described, and applying the matters set out by Ryan FM in SDW v JCL, it is clearly in the children’s best interests that their names be changed in this way.

Counselling

Dr O has recommended that the mother actively engage in counselling to assist her to understand the true nature of her parental limitations and to accept [X] and [Y] being in the primary care of their father, and to develop strategies for making the most of the time that she is able to spend with the children (paragraph 90 Dr O’s report).
In my view all the evidence in this case, including the demeanour of the mother when she gave evidence, suggests that the mother presents superficially well but lacks insight. It will be in her interests and certainly, in the circumstances, in the children’s best interests if she undertakes the counselling concerned.
Nonetheless, I am concerned that Court-ordered counselling, breach of which would form a contravention and expose the mother to potential penalties, is not likely to be productive. Given that the mother lacks insight in the fashion in which I have described, it is highly unlikely she would respond positively to a formal order requiring her, so to speak, to address this lack of insight. It is clearly greatly to be hoped that the mother will be able to take on board these Reasons for Judgment and enrol herself in an appropriate course to gain assistance, but I think that it is inappropriate to order it. I think it is only too likely to cause further litigation in the event that I impose such a regime.
The Independent Children’s Lawyer has sought, as recommended by Dr O, that the father participate in ongoing drug and alcohol counselling. This is not opposed by the father and will, therefore, be ordered.
Dr O has also recommended that the father undertake either individual or group-based parental skills training to offer him ongoing alternatives to forms of physical punishment. I note that the father is receiving assistance from the [omitted] Outreach Group and, having seen him give his evidence, I am satisfied that this assistance will be sufficient for these purposes.

Issues to do with the children’s school

The mother was adamant that the father prohibits her from attending the children’s school. As I endeavoured, I fear without success, to explain to her, he has no authority to do so. I will make the necessary order formally to require the father to authorise the school to make any school reports or the like available to the mother. I will also make it clear in the orders that the mother is entitled to attend any function at school that she may desire. It would be entirely in the children’s best interests if she were to do so.

Physical discipline

Both sides admit to inappropriate physical disciplining of the children in the past. I will make an order to prohibit it.

Denigration

Both parties seem more likely than otherwise to me to have denigrated one another in the past. It is plainly not in the children’s best interests that any such denigration continue, and I will make an order for mutual non-denigration.

The exclusion of other witnesses sought to be called by the mother

During the currency of the hearing, I indicated that I was not prepared to adjourn the case for some days to enable the mother to have the possibility of calling a number of additional witnesses. The identity of those witnesses is disclosed at the end of the affidavit she filed in Court on the first day of the hearing. It emerged that it was not certain that any of them would in fact be guaranteed to attend, and their evidence for the reasons disclosed in the transcript seemed to me to be so tangential to the primary issues with which the Court was concerned that it was inappropriate to adjourn. I was conscious that the mother was representing herself, but in the face of the apparent uncertainty as to whether witnesses would attend, and the likely forensic value of the evidence that the mother indicated that they would provide (given the very strong family report and the unchallenged evidence of Dr K), it seemed to me then, and I repeat now, it was inappropriate to adjourn. In any event, the Court’s capacity to make further time available in the fashion sought by the mother is extremely limited. The High Court has made it plain in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that such case management issues are by no means irrelevant in these sorts of circumstances.

Conclusion

I will direct the parties to draw up minutes of orders to give effect to these Reasons for Judgment.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 30 September 2010