Mother Opposes Child's Living Arrangement with Grandmother
Croft & Wilmot & Anor [2021] FCCA 1542 (15 June 2021)
X had primarily living arrangements with his paternal grandmother due to the alleged risk of harm posed by the mother. The mother opposes such living arrangements and seeks a transition of X's care to her as well as sole parental responsibility for X. The Court assessed concerns about the mother’s mental health, cannabis use, aggression, perpetration of family violence and association with the child’s father before making final parenting orders.
Facts:
X lived with his paternal grandmother since he was about four months old. X's living arrangement with his paternal grandmother was prompted by the risk of harm because of the mother’s mental health, cannabis use and lack of parenting skills. The mother asserts that the paternal grandmother stole the child to fill a need in her own life. She said that immediately after X’s birth she was having issues with X’s father, Mr Fox, and was distracted and upset by these issues, but that she had since shown that she was able to care for X. The mother sought sole parental responsibility for X and for X to continue to live with the paternal grandmother for the next 12 months but spend increasing amounts of time with her until he was transitioned into her full time care.
She feared that the paternal grandmother would withhold him or make further complaints about her care of him. The paternal grandmother proposed that she have sole parental responsibility and that X live with her.
Issue:
Whether or not a child aged 2 should remain living with his paternal grandmother or transition to the care of the mother.
Applicable law:
Family Law Act 1975 (Cth) s 60CC - provides that the Court, in making parenting orders, should treat the child's best interest as the paramount consideration.
The primary considerations the court referred to are the following:
a. the benefit to the child of having a meaningful relationship with both of his 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.
Family Law Act 1975 (Cth) s 61DA - provides for the presumption that the parents should have equal shared parental responsibility for X.
In the case of Mazorski & Albright [2007] FamCA 520; (2008) 37 FamLR 518, it was held that even if the relationship of the parent with the child cannot be meaningful, in that it is significant, important and valuable to the child.
Analysis:
X has been in the primary care of his paternal grandmother since he was four months old and he has a good relationship with her. There are references to a positive interaction between them in doctor’s notes in the tender bundle, and the observation by the family report writer was positive. The paternal grandmother is X’s primary attachment figure. On the other hand, the nature of X's relationship with the mother is uncertain.
Conclusion:
The Court ordered that the paternal grandmother shall have sole parental responsibility for the child. The child shall live with the paternal grandmother. The paternal grandmother, mother and father shall keep the other parties informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parties of any change thereto within 48 hours of such change. The paternal grandmother shall promptly notify the parents if the child is involved in an accident or medical emergency, in that event the parents may not without the consent of the paternal grandmother visit the child in hospital. The mother is restrained and an injunction is granted restraining her from removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the paternal grandmother has placed the child.