WATSON & BUTLER

[2014] FamCA 1219

FAMILY COURT OF AUSTRALIA

WATSON & BUTLER [2014] FamCA 1219

FAMILY LAW – PARENTING – father has sole parental responsibility

APPLICANT: Ms Watson

RESPONDENT: Mr Butler

FILE NUMBER: CAC 613 of 2014

DATE DELIVERED: 11 December 2014

PLACE DELIVERED: Canberra

PLACE HEARD: 11 December 2015

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	No appearance by or on behalf of Ms Watson
COUNSEL FOR THE RESPONDENT:	Mr Hill

SOLICITOR FOR THE RESPONDENT: Elizabeth Fleming & Associates

Orders

1. That the father has sole parental responsibility for B, born … 2013. 

   (a)       That the child live with her father

   (b)It is noted in this regard that the child’s father proposes to continue to live indefinitely with his parents in C Town, New South Wales.  His parents, I am satisfied, accept that arrangement and are happy to continue to contribute to the child’s welfare.

2. B will spend such time with her mother as may be agreed between the child’s parents, noting that for the next period at least it is probable that such time that the child spends with her mother will occur in the presence of either the father or his parents. 

3. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

IT IS NOTED THAT:

1. There is a good relationship between Ms Watson and the paternal grandmother and I note that each of the respondent, Mr Butler, and his parents, Mr D Butler and Ms E Butler, are committed to the proposition that the child should have a proper relationship with her mother. 

IT IS FURTHER ORDERED THAT:

1. The matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 613 of 2014

Ms Watson

Applicant

And

Mr Butler

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the court arise out of an initial application, in effect appealing a local court order, but for practical purposes have, since about May of this year, involved proceedings for which the applicant mother has been nominally, the applicant.  Both the mother and the father are young still, and the child, who was born in 2013, is very tiny indeed. 

2. The history of the matter is very vexed and probably does not bear repetition for the purposes of this judgment, except to say that what has happened is that the child now lives with her father, who lives with his parents in C Town.  The child’s mother lives somewhere in the Canberra/Queanbeyan district, although precisely where at the moment is not quite clear to everyone. 

3. This was a matter in which there was perhaps a greater expectation about what two young people might have been capable of than they were in fact capable of.  That is not a criticism of them; simply a commentary on the problems that they faced.  I was fortunate enough to have in this matter a family report, and Ms F in her report dated 29 August 2014, set out a long history of the matter, and dealt with a number of issues which I have discussed with the parties in preparation for this trial. 

4. It suffices to say that there does not appear to be any indication that Ms Watson is capable, in the foreseeable future, of having any independent and stable accommodation, and she has no proper network that she could rely on to support and assist her in the care of the child.  That appears at paragraph 47 of the family report.  The extent to which Ms Watson has been isolated from different people is a matter of concern, and there is a poignancy in the comment that is made in paragraph 32 in these terms:

   [Ms Watson] was asked how she would manage when her friends wanted her to go out and she had the care of [the child].  She said, “I don’t have any friends.  I enjoy myself with [the child].” 

5. Ms Watson, for her part, was in these proceedings seeking that she have what amounted to a shared-care arrangement with Mr Butler, but this seemed to be an embryonic idea, rather than one that had been well thought-out.  For example, in paragraph 29 of the family report:

   [Ms Watson] said that she had refused to return to live in [C Town], but had also said, “However, I’ll do anything for [the child].” 

6. It appears that Ms Watson does not necessarily have any ties to the Canberra/Queanbeyan district, or to G Town, for that matter.  It also appears – and I use the word “appears” because I am not doubting what I am told by Mr and Mrs – by Mrs Watson in particular, and by the respondent – but it appears that there has been a falling out between the child and her mother.  This is really a continuation of a long history of difficulty for her, in that Ms Watson left home – at the age of 12 and lived in various refuges and casual accommodation.  In fact, in some respects I form the impression that the paternal grandmother is probably as close as Ms Watson is likely to have to a mother. 

7. Notwithstanding the relationships and the volatility of some of the exchanges between them all, what has happened is that there has never been an occasion – that I am aware of – where the Butlers collectively, the three of them, have refused an opportunity for the child to spend time with her mother.  The current arrangements appear to be that Ms Watson makes telephone contact with the paternal grandmother from time to time – approximately once a week, sometimes more – by text or by voice, and usually will inquire, but not always will inquire, about the child’s wellbeing. 

8. She makes arrangements to see the child, sometimes up to twice a month, by coming down to C Town, presumably by bus or with a friend, and then spends a few hours with the child in the presence of the Butlers.  It is reported by the respondent and by his mother that it appears that both the child and Ms Watson enjoy their time together, but of course it is but a few hours in the little person’s life.  It also appears that notwithstanding the recommendations made extensively in the family report that Ms Watson has not yet been prepared to undertake the sorts of courses and to seek the support that is available to her to enable her to be a better parent, and perhaps to participate more significantly in the child’s life.

9. It also seems that the possibility that she might return to C Town and live there has evaporated, at least for the time being, as – again, I say it “appears” because I do not have any direct evidence about it – that she has fallen out with the person with whom she might have been able to obtain accommodation.  This in turn limits the availability of opportunities for the child to spend time with her mother.  All of those matters are significant in informing my opinion about what should happen in this case. 

10. I indicate, to begin with, that I am satisfied that any order I make must be in the best interests of the child, and not necessarily in the best interests of anyone else. 

11. But, in this case, there are some things which need to be done which will have the effect of saying that the child’s best interest will lie with what might be the general thrust of the application made on behalf of the father.  The father seeks orders that he have sole parental responsibility and that the child live with him, and in orders which are now but faintly pressed and in my opinion should be abandoned, that the child spend supervised time with her mother at H Centre for two hours once a fortnight – I am satisfied there is a H Centre at I Town which would enable that to happen – until the child turns five, and that after she turns five that she spend every second weekend with the mother while the mother maintains a residence in the C Town area. 

12. I cannot, in the light of the evidence before me at the moment, make orders that would be as specific as either of those two last-mentioned orders about the time that the child spends with her mother.  I cannot be satisfied that there will be any commitment on the mother’s part, or an ability on her part, to carry out a commitment, even if she were prepared to make it.  That is not a criticism of her as such; it is merely a commentary on the reality of the situation. 

13. It appears that the mother is not working and is dependent upon social security.  The paternal grandmother informs me that her understanding is that the mother has a debt due to social security of some $10,000, which would be an almost insurmountable sum of money for someone in Ms Watson’s position.

14. In determining what is in the child’s best interests, I am obliged to take account of two primary considerations and a number of additional considerations.  The primary considerations include the benefit to the child in having a meaningful relationship with both of her parents.  I am satisfied that it is important for the child to have that relationship, and that is something which is acknowledged by both the paternal grandparents, and by their son.  The opportunities for that to exist in any realistic way are dependent upon a number of steps being undertaken by Ms Watson, which, so far, she has not indicated a preparedness to do.

15. This is very sad, because the child will need the benefit of her mother as she gets older and, in fact, probably needs the benefit of a proper relationship with her mother now.  To the extent that the existing arrangements provide an opportunity for the child to have a relationship with her mother, I am prepared to say that it is probably as meaningful a relationship as is possible in the circumstances.  “Meaningful relationship” must have a relative definition when you consider the varying circumstances in which parents and children find themselves.  That is not to say that the relationship could not be improved, and it is at least encouraging to me that the grandparents and the father are anxious that that relationship should improve, and if it depends on their goodwill, I am satisfied that it will improve in the future. 

16. However, the most important consideration among the primary considerations is that I must be satisfied that I have made orders which will protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect, or family violence.  I am not satisfied in this matter, on the basis of the evidence I have before me, that there is any direct reason to believe that the child’s mother would consciously or deliberately expose the child to any degree of harm, either physical, or psychological, or emotional. 

17. However, the events as set out in the family report and in the affidavits filed suggest that sometimes people who are young – as Ms Watson is – have not had the ability to understand that the consequences of their actions may sometimes have a fairly significant effect on little people.  And there is certainly come evidence before me which suggests that Ms Watson’s parenting skills have not yet reached a point where the child could comfortably spend time with her mother, with everyone being confident that she would be properly looked after in those circumstances. 

18. That is not to say that for one moment she would do something that she would feel in any way was of danger to the child, but her lack of, perhaps, upbringing and support emotionally from her own family, and also just her life experiences, mean that it does seem important that she undertakes some courses to give her some assistance with her parenting. 

19. I am obliged, under the Act, to apply a presumption that there should be equal shared parental responsibility, unless that presumption is to be rebutted in some way.  In this matter, it is not appropriate that there should be equal shared parental responsibility. 

20. I am not arriving at that conclusion because of violence, although there is some evidence of that.  I am arriving at that conclusion because, generally, it would not be in the child’s best interests at the moment for parental responsibility to be shared between the parents.  It is not feasible, under the current arrangements, for there to be a sharing of decision-making, or indeed a sharing in a more general sense of the responsibilities that relate to being parents.  In some respects – and I say this, to you Mr Butler, not intending in any way to be critical – the parents of little the child are but not much more than children themselves, and in those circumstances it is very difficult for them to behave as if they were experienced adults, and experienced parents. 

21. However, the circumstances in which the child finds herself, in living with her father with loving grandparents who are prepared to accept – notwithstanding that their own family is finally off their hands – is the best arrangement at present for her.  I have little doubt that the appropriate order I should make at this point is that Mr Butler should have sole parental responsibility, noting, as I do, that such – that he proposes to live with his parents indefinitely, and certainly during the next few years, as he obtains some qualification through an apprenticeship.  He will have the benefit of the experience of both of his parents and their commitment to the child in arriving at proper decisions for the child’s welfare. 

22. I am encouraged in this conclusion by the comments made, almost matter-of-factly, by the paternal grandmother that Mr Butler is acquiring parental skills and improving as time goes by.  I formed the impression that this was a genuine and accurate commentary on the part of the paternal grandmother, and I accept that is the case. 

23. Other matters that I am to take into account, which I regard as relevant – and in nominating these matters I am not suggesting the other matters have not been the subject of my consideration – are these. 

24. I am satisfied that the child has a good relationship with her father and a good relationship with her parental grandparents.

25. I am satisfied she has a relationship of sorts with her mother, which may and will be improved if the mother is able to find time to spend more opportunities to develop with the child.  That relationship will also improve if the mother is prepared to listen to the recommendations from the family consultant, and to try to improve her parenting skills.  The extent to which the mother’s wider family might have a relationship with the child is unknown to me, except to the extent that the opportunities for it to develop have been virtually nil, and in such circumstances, given particularly the number of changes of residence that Ms Watson has had in recent times suggests that there are no relationships in that area which at present are providing support or value to the child. 

26. Again, that is not to say that at some point in the future those relationships might not become more important.  The decisions about the child’s long-term welfare have been the subject of the mother’s taking the child and leaving C Town, which would not necessarily be considered to be a decision of that sort. 

27. Her subsequent participation in the child’s care appears to be, to some extent, removed, if not perfunctory, in that it seems to be confined to making occasional inquiries after the child’s welfare.  I am satisfied the mother has made attempts to spend time with the child and to communicate, to the extent that she can, but this is made much more difficult by the straitened financial circumstances in which the mother finds herself. 

28. I am satisfied that the father has accepted responsibilities as a parent for the child, and that the mother has endeavoured to do so to the best of her ability, but unfortunately her ability has not permitted her to fulfil those parental obligations in any meaningful way.  The child is settled in her current circumstances, and a change from that would not operate to her benefit at the moment, even if there were satisfactory arrangements proposed by the mother as an alternative. 

29. There are difficulties associated with the child spending time with her mother, but none that can be rectified by orders of this court at this point.

30. So far as the capacity of each of the relevant parties is concerned, I am satisfied that the paternal grandparents have the capacity properly to guide their son in his parenting of the child, have been doing so, and will do so. 

31. I am not satisfied, at this point, that Ms Watson has the capacity to look after the child, certainly beyond spending time with her from time to time, which will obviously change as the child gets older. 

32. There are no matters relating to cultural background that I feel bear upon this matter in any way that would affect the orders I am likely to make.

33. I have already commented about the attitude of each of the parents to their responsibilities as parents.

34. There have been issues relating to family violence in the past.  None of those seems to be relevant to the matters that are before me today.  And I am conscious of the fact that on this particular occasion Ms Watson has not come to court, and our attempts to contact her have been unsuccessful.  The paternal grandmother suggests that Ms Watson has given up, and feels that she will lose in court.  It is sad that she was not here today to participate in the proceedings, and to hopefully be part of the planning for the child’s future.  If she chooses at some point to come back to court, then no doubt she will explain why she stayed away on this occasion.  In those circumstances, the orders that I believe to be appropriate are as follows:

35. Otherwise, the matter is removed from the pending cases list. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 11 December 2014.

Associate: 

Date:  25 March 2015