R and C

[2006] FCWA 93

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	R and C [2006] FCWA 93
CORAM:	PENNY J
HEARD:	11 SEPTEMBER 2006
DELIVERED:	13 SEPTEMBER 2006
FILE NO/S:	PT 1925 of 2005
BETWEEN:	R

Applicant/Father

AND

C
Respondent/Mother

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Catchwords:

Children's issues - child and father have intellectual disability - child thinks another man is his father - will the father spending time with child result in meaningful relationship - no benefit to child - application dismissed

Legislation:

Family Court Act 1997 - s 66A, s 66C(2)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Ms S Somers

Solicitors:

Applicant	:	Dwyer Durack
Respondent	:	Sarah B Somers

Case(s) referred to in judgment(s):

Nil
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1 This trial dealt with the competing applications of Mr R and Ms C, the parents of Ronald, who is now aged 13 years. Mr R is seeking to spend time with Ronald, who he has not seen since Ronald was 3. Ms C opposes the contact and says that because of Mr R and Ronald’s intellectual disabilities, it would not be in Ronald’s best interests for him to spend time with his father.

The facts

2 Mr R is aged 34, and Ms C 32. They commenced residing together in November 1991. Ronald was born in October the following year. They separated when Ronald was approximately 7 months old.

3 Mr R had little contact with Ronald after separation. In 1994, when Ronald was 22 months old, Ms C agreed to Mr R spending time with him, providing his visits were supervised by Mr R’s father or his brother. This supervised contact only took place on approximately three occasions, after which Mr R’s father became ill and could no longer supervise the contact. After that time, neither Mr R’s mother nor father contacted Ms C to see if they could see Ronald. No-one in the family sent cards or gifts to Ronald.

4 Initially, Mr R went to Legal Aid to attempt to get some legal assistance to help him have contact with Ronald. After a counselling session with Ms C, the supervised contact arrangement was agreed to. Subsequently, another legal aid counselling session was scheduled; however, Ms C did not attend.

5 In 1995 Mr R went to England for a year, returning in 1996. He says he approached Legal Aid when he returned to Australia for assistance to arrange contact with Ronald, but did not get a grant of aid.

6 In 2002 Mr R went to Ms C’s house in [the suburbs] and stood on the verge. He wanted to see Ronald. He left before he did so because he was concerned he would be accused of trespassing.

7 Ronald has been diagnosed with a moderate intellectual disability. Dr Watts, a clinical psychologist, who prepared a report for the court, indicated that Ronald’s level of development will be such that he will work in a sheltered environment and always reside with his mother, or in a supervised group housing situation.

8 Mr R also has an intellectual disability, which I shall discuss later. He does some volunteer work and other activities, including at the [the suburban] TAB, gardening for an elderly woman and

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helping his maternal grandparents. He also babysits his brother’s
children from time to time.

9 Ms C was in a relationship with Mr N from 1994 to 2002. They lived together from 1996. After Ms C broke up with him, he relocated to [the Eastern states]. Ronald believes that Mr N is his real Dad, and that he went to work in [the Eastern states].

10 One of the consequences of a re-introduction of Ronald to his father will be that he will have to come to the reality that Mr N is not his father and that his mother has led him to believe this was true when it was not.

Proposals of the parties

11 Mr R would like to have unsupervised contact with Ronald; however, after reading the report prepared by Dr Watts, he is now prepared to have supervised contact for two hours per month, supervised by Relationships Australia.

12 Ms C’s position is that even this much contact would be too much for Ronald and that he would not benefit from any contact with his father.

Mr R’s intellectual disability

13 Mr R is described by Dr Watts as having a significant intellectual disability with a history of educational support. Dr Watts states that he lacks insight, telling Dr Watts he had problems like Ronald, but he is over them now. In discussing his intellectual functioning, Dr Watts stated as follows:

“To understand the issues, it is important to understand intellectual functioning. In broad terms, the lower someone’s IQ, generally the slower they process and learn new information. However, when the intelligence level drops below a certain point, not only do they process information more slowly, but they tend to see it in different or unusual ways. My opinion is that Mr R’s IQ is of a level where not only is his processing slow, but also he sees the world in a different way.

Overall, Mr R is only marginally independently functional, is not capable of sustained employment, except in a sheltered workshop type environment.”

Ronald’s intellectual capacity

14 Dr Watts stated as follows:

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“[Ronald] is a big boy physically, but intellectually and emotionally shows significant disabilities. A recent IQ assessment places him as having a moderate intellectual disability when assessed in July last year. An IQ of the level at which Ronald functions means that he would be unable to attend mainstream school, unable to live independently, unable to attain open employment, but will eventually be trained for limited shelter workshop type employment. This is no reflection on the parenting he has received, it is a function of his biological/genetic makeup.”

15 Dr Watts described Ronald as being emotionally mature as a child in the 3 to 5 year old range, and intellectually is probably around the 4 to 6 year old range.

The law

16 The Family Court Act 1997 sets out the provisions of that Act which relate to children. Two of the objects of that part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both their parents having meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence;

17 S 66A of the Family Court Act 1997 states that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. How a court determines what is in the child’s best interests is set out in s 66C(2). The primary considerations to be taken into account reflect the objects of the part as set out previously. The primary considerations when determining what is in a child’s best interests are:

“(a) the benefit to the child of having a meaningful

relationship with both of the child’s parents; and

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

18 Both these matters are relevant to this determination. Mr R says that Ronald would benefit by having a meaningful relationship with him as well as Ms C. Ms C says that there would be no benefit to Ronald from this relationship, and that he could suffer

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from psychological harm even if the contact was supervised and infrequent. In determining these issues I need to consider the additional considerations set out in s 66C(3). These considerations impact upon the relationship the child would have with Mr R if contact took place and whether there would be a negative effect upon him if the contact occurred. The relevant additional considerations in this matter are as follows:

(b)	the nature of the relationship with the child with:
(i) each of the child’s parents

19 Ronald obviously has a close relationship with Ms C. He has resided with her all his life. Ms C does not work and is always available to care for him. He is not able to live independently of her.

20 Ronald does not have a relationship at all with Mr R and, in fact, thinks that Mr N is his father. Because of this fact, the introduction of Mr R to Ronald as his father is going to be very difficult for him to accept and process. Dr Watts’ opinion is that initially Ronald should not be introduced to Mr R as his biological father. He says this introduction of the concept of someone other than Mr N being his father should be done therapeutically and he suggests that Disability Services maybe able to provide some psychological support for Ronald in this regard. According to Dr Watts, it may take Ronald months or years to come to grips with the reality of Mr R being his father figure.

(ii) other persons (including any grandparent or other

relative of the child)

21 Ms C and Ronald reside with her parents. Ronald obviously has a good relationship with them.

c) 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

22 The parties only lived together for seven months after Ronald’s birth. They both describe the relationship as being an argumentative one. Mr R’s perception of the relationship is that he was bullied and beaten by Ms C. Ms C says that in the relationship they were both argumentative. These arguments were not one- sided. Mr R’s father heard, but did not witness, an argument between the parties. He left the house without entering and was satisfied the argument was caused by both of them.

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23	Ms C has, for the majority of Ronald’s life, been responsible for all aspects of his care, welfare and development. Mr R initially wanted contact and Ms C stated this had to be supervised. It only occurred on three occasions before Mr R [senior] became ill. Although Mr R wanted contact on occasions, there were lengthy periods when no attempt was made to initiate contact. Indeed, Mr R lived overseas for a year. Neither of his parents, the grandparents of Ronald, attempted to have contact, send cards or presents, or establish a relationship with Ronald.
24	When contact was sought by Mr R in 1995, Ms C appeared to be considering a supervised contact regime. That changed after Ms C’s observations of Mr R at the pre-trial conference. She refused to attend in the room with him. He became very agitated and unhappy as a result of this. She is concerned this conduct of Mr R’s, which he did not control, will be evident if contact with Ronald occurs and this will frighten Ronald.
25	Mr R was scathing of Ms C when he gave his evidence. He accused her of bashing him up with her fists and says that she abused him mentally and physically. He described himself as only weighing 34 kilograms when he stopped living with her as she did not feed him. I find this very hard to believe, as he is a large man. He says that he is scared of her, and he is scared of her bashing him up. This fear is illogical and certainly not well-founded. These parties separated 12 years ago and Ms C has made no attempt to contact Mr R and has made it clear that she wants nothing to do with him. I have reservations about Mr R’s ability to deal with this issue when he has contact with Ronald. In my opinion, he is likely to make negative comments about Ms C, which Ronald would find very distressing.
26	If contact took place, it would not be encouraged by Ms C. She does not believe, at this time, it is in Ronald’s interests to be introduced to Mr R, who she believes has little to contribute to his welfare. In addition, she is not convinced that Mr R will maintain his interest in seeing Ronald.
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(d)	the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

27 Mr R says that there will be no detriment to Ronald by being separated for a few hours a month from Ms C. Ronald can be a fearful boy, but is sometimes happy speaking to strangers. If Ronald is not going to be told that Mr R is his father to commence with, what will he think, or how will he interpret this meeting with a stranger? Dr Watts’ view is that Mr R has little to offer Ronald in terms of guidance or role modelling, but rather the best he could be is a play mate to him. How Ronald would accept this adult in that role, nobody knows.

28 Dr Watts states that Ronald’s ability to deal with issues is limited. He says that his ability to deal with everyday matters may be adversely affected by having to deal with this concept of a stranger who is now in his life. If he does not like Mr R, and refuses to go back to see him again, this could provide problems for Ms C. If he is unhappy with the concept of Mr R as his father, rather than Mr N, he could act out and it would be Ms C who would have to deal with the sequel to that.

29 It is hard to see what positive effects there will be for Ronald from contact with Mr R, but there could be numerous adverse effects.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

30 The only meaningful benefit Ronald would get from a relationship with Mr R is that he would eventually become aware that Mr R was his father. If this was to happen, Ronald would need extensive counselling. Dr Watts suggested that Disability Services may be able to provide this. In addition, the contact would have to be supervised and Dr Watts recommends Relationships Australia, as they have properly trained supervisors. There would certainly be an expense incurred for the contact with Relationships Australia, and there may be an expense if Disability Services provide

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counselling. Ms C’s only source of income is the pension. Mr R’s only source of income is a disability pension. Neither have significant funds and even if the fees for the services to be provided were relatively small, there would be a financial drain on both of them.

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and
intellectual needs;

31 Ms C obviously has the capacity to care for Ronald and has done so with the assistance of her parents for many years. Dr Watts commented that Ronald had obviously been the subject of good parenting, as he was polite and well-behaved when interviewed by him.

32 Mr R has not had the opportunity to show what capacity, if any, he has to provide for Ronald’s emotional, physical and intellectual needs. When Ronald was a baby and the parties were living together he allegedly had difficulty coping with his needs at that time. Given Mr R’s intellectual difficulties, he is unlikely to be able to provide for Ronald’s emotional and intellectual needs. In my view, he would not be able to provide for his emotional needs in that he is unlikely to be able to restrain himself from discussing his fears of Ms C or his relationship with Ronald. If either of these matters were raised, it is highly likely that Ronald could suffer emotionally from any outbursts.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

33 I have already set out in some detail the intellectual difficulties suffered by both Mr R and Ronald. Ms C has a fear of Mr R’s ability to be able to care for Ronald, his aggressive outbursts and his ability to be able to relate sensitively to his needs. While Ms C is quite simplistic in her approach to life, she does have the capacity to care for Ronald.

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(i)	the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
34	Ms C has proven that she is a responsible parent and provides appropriately for Ronald’s needs. This is not easy, given his significant disabilities.
35	Mr R is desperate to have a relationship with Ronald. He finds it difficult to understand why this has not been able to occur.
(j)	any family violence involving the child or a member of the child’s family;

36 Mr R alleges that Ms C was violent to him and he is fearful of her. In my opinion, it is likely that any disputes between the parties when they lived together 12 years ago were contributed to by both of them and Mr R’s fear is unjustified.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

37 In my view, it would be appropriate to make an order that would be least likely to lead to further proceedings. It is obvious that Ms C has found these proceedings upsetting. If Mr R acted in an inappropriate fashion at supervised contact, it is likely the matter would need to come back to court. If Mr R lost interest and did not attend contact, it is likely the matter would come back to court. If Ronald became fearful of Mr R and did not want to attend contact, the matter would likely come back to court. If I ordered supervised contact, it would have to be on an interim basis and supervised, and the situation then reviewed.

38 The only order which would reduce the likelihood of further proceedings would be an order that Mr R has no contact with Ronald.

Conclusions on contact

39 I return now to the primary considerations. The first of those is whether there would be a benefit to Ronald of having a meaningful relationship with Mr R. The Macquarie Dictionary definition of “meaningful” is full of meaning; significant. What is a meaningful relationship must, in my view, be viewed in the context of the particular type of relationship. This relationship is that of father and son. One would normally expect a child to get from this type of relationship a sense of who he is and where he fits. A child would normally expect to find in a father a mentor and

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adviser and someone who can set appropriate boundaries. For Ronald’s relationship with Mr R to be significant to him, Ronald would have to eventually be advised of the fact that Mr R was his father. This would destroy his current sense of who he is and where he fits. It would take a very long time to accept that Mr R was his father and Mr N was not. Mr R has not got the ability or skills to be able to mentor, advise or set boundaries for Ronald. As I stated, the best Ronald will get out of spending time with Mr R is a mate, not a father.

40 Taking into account all of the matters it is hard to see that if contact was ordered that Ronald would have a meaningful relationship with Mr R. Initially, that contact would be only as “a mate”. There is no evidence that Ronald is in need of a “mate”. At school he interacts with school friends, but likes his own company and spends a significant amount of time on his own. As Dr Watts stated, Ronald has a limited capacity to deal with life generally. If he was forced to deal with the issue of his parentage, it would distract him from other basic skills he needs to develop to survive. To justify this disruption to Ronald I would have to be confident that Mr R has something to offer Ronald which would be meaningful to him. I cannot find, given Mr R’s limitations, that a meaningful relationship would result. That being the case, I do not have to consider whether there would be a benefit to Ronald if such a relationship did occur.

41 Not only is it unlikely that a meaningful relationship will develop, there is a real likelihood that psychological harm could occur to him if this contact took place. As stated previously, I have real reservations about how Mr R would react even in a supervised environment. I know he wants to act in an appropriate fashion and he desperately wants a relationship with his son. He does, however, have strong negative views in relation to Ms C. If he expresses those views it is likely to cause significant concern to Ronald.

42 The application should be dismissed.

I certify that the preceding [42] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate
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