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MOTHER SEEKS COURT ORDER TO RESTRAIN HER CHILD AND THE PATERNAL GRANDMOTHER FROM MOVING TO NEW ZEALAND

Thexton & Barrie & Anor [2021] FCCA 929 (12 April 2021)

This matter involves parenting arrangements for her child X. The mother wishes X to remain in Australia. The paternal grandmother, with whom X has been living for the last three years, wishes to take him to New Zealand to live.

Facts:

The mother wishes X to remain in Australia because she wishes for him to transition back into her full-time care. She says that if the paternal grandmother cannot remain in Australia then X should live with her.

The mother and father were both heavily into drugs during their relationship, and it included the use of methamphetamine or ice.

Since X came into the paternal grandmother’s care she has been solely responsible for his support.

The mother was involved in criminal activities and after X came into the paternal grandmother’s care she was arrested and sentenced to two and a half years in jail. She served about seven months and was released on parole in 2019. Her parole period ended in 2021.

The mother’s case was that she had spoken to the paternal grandmother about X returning to her care and that the paternal grandmother had agreed that this could occur if she was stable and clean of illicit drug use.

The paternal grandmother said that she needed to return to New Zealand for support. She was getting older and X had significant special needs.

The paternal grandmother said that it was not possible for X to live with the mother.  The paternal grandmother said that X had significant special needs and may have ASD and ADD and that he needed stable care. She strongly asserted that the mother was not in a position to provide that care.

The paternal grandmother provided some Facebook pages which suggested that the mother and her current partner were offering sexual services to the public and offering to employ sex workers. The paternal grandmother endeavoured to be fair and said that some people did engage in that kind of work, but one of the Facebook pages was very concerning and she said that given X’s special needs it would be deleterious to him to be living with someone who was engaged in that sort of lifestyle.

Issue: Should the court grant the order sought by the mother?

Law:

Analysis:

The mother has a lengthy history of drug use, including methamphetamine use, and a criminal history, and she is still using cannabis and she has not done a urine drug test voluntarily for these proceedings.

The Facebook posts the paternal grandmother provided raise serious concerns about the mother’s lifestyle and also about her partner, and no affidavit was provided from her partner. The material filed by both the paternal and maternal grandmother raises concerns about the mother’s housing stability.

The court cannot rule the possibility that the mother either poses a significant risk of harm to X or at the very least is incapable of providing him with appropriate parenting, and X is a vulnerable child with significant special needs.

If X remains in Australia the best that could be ordered in light of the unresolved issues about the mother, including her drug use, her lifestyle and her choice of partner, would be that X spend supervised time with her, and given X’s issues and the uncertainty about the mother’s drug use, it may initially have to be professionally supervised time.

Under no circumstances could the court consider making an order at the moment that X lives with the mother. He could be placed at serious risk of harm.

Conclusion: The paternal grandmother is hereby permitted to relocate the child’s place of residence to New Zealand.

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