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Paternal Grandparents Seek Sole Parental Responsibility over Child

Wheatley & Campbell [2021] FCCA 1337 (2 August 2021)

The parties dispute parenting arrangements for X who has been living with her paternal grandparents for over two years.   Both of X's parents have perpetrated family violence and have a history of drug use.  The paternal grandparents propose sole parental responsibility over X and supervised time for the mother and father.  The Court, in deciding orders to make, relied upon the evidence provided by the parties against each other and X's safety. 

Facts:

The parties or X's parents were in a de facto relationship for eleven years.  They lived in the same residence, had a child, mingled their finances and became joint owners of the G Street, Suburb H property.  X’s parents then separated.  X has been living with her paternal grandparents since April 2019 and they proposed that this continue.  The mother sought an order that the child live with her but later on agreed that X should continue to live with the paternal grandparents who shall have sole parental responsibility. 

The Independent Children’s Lawyer also supported that outcome.  The Independent Children’s Lawyer proposed that this should be conditional on compliance by the paternal grandparents with numerous other orders, including orders about X spending time with the mother, the paternal grandparents providing information to the mother and the parties not denigrating each other.  The paternal grandparents said that they were concerned about X’s safety with the mother because the mother would expose X to her out of control drug use (ice and cannabis) and alcohol abuse, severe mood swings and threats of self-harm, reckless and dangerous driving with X in the car and malicious damage to their home and property, potentially putting X at imminent risk of danger.  There were further allegations by the paternal grandparents about the mother threatening and stalking them and the father after separation. 

The mother’s failure to address at trial the concern about her mental health which was raised in the family report and her failure to provide any evidence about her new partner left them unconvinced that X would be safe spending unsupervised time with her and they were also unconvinced that she had ceased drug use.   The paternal grandparents acknowledged that the father was using drugs but proposed that he be able to spend time with X under their supervision and that he should be able to spend the same amount of unsupervised time with X as the mother if he was able to demonstrate that he was drug free.  The mother also alleged violence perpetrated by the father.  The paternal grandparents proposed that X spend time with the mother until June 2022 because this was when the ADVO in place for their protection from the mother expired. 

The paternal grandparents proposed the same regime for the father save that they proposed that during the period when supervision was required his time with X be supervised by them.  They proposed that the mother be required to engage with a psychologist in regard to her mental health which the mother failed to address at trial.  The Independent Children’s Lawyer submitted that the father should spend no time and have no communication with X.  It was also submitted by the ICL that X should immediately commence spending unsupervised time with the mother.

Issue:

I. How much time X should spend with her mother and father. 

II. Whether or not the child will be safe in the mother’s unsupervised care.

III. Whether an order should be made that the father spend no time with the child.

IV. What particular alteration of interests would be just and equitable.

Applicable law:

Family Law Act 1975 (Cth), ss 60CC61DA65LA90SF - any orders the Court makes in relation to parenting must be orders determined by treating the child's best interests as the paramount consideration.

Family Law Act 1975 (Cth) s 90SM - empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.

Gosper & Gosper [1987] FamCA 43(1987) FLC 91-818 - provided that while the paternal grandparents gifted the spouses money to assist with the purchase of property, the gift was clearly made because of their relationship with their son and the father deserves some credit for bringing in this money.
Stanford & Stanford [2012] HCA 52(2012) FLC 93-518 - 
the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. 

Analysis:

The Independent Children's Lawyer submitted that the father was in the thrall of methamphetamine use and there was no sign that he was likely to overcome it, and he was also a perpetrator of family violence.  She submitted that the paternal grandparents had a bias for the father and might not keep X safe from him unless an order was made that they not permit any contact between X and the father.  The ICL seeks an immediate commencement of the mother's unsupervised time with X because the mother had a job and was caring for J and there was no evidence that she had recently used drugs.  The mother had been a victim of family violence at the father’s hands and that her future parenting capacity should not be judged by the way she behaved during the relationship.

There is no evidence that the mother is currently using drugs but she was not open and honest about her past drug use which makes it impossible for the Court to assess how likely it is that she will use drugs again in the future.  The paternal grandparents have always been involved in X’s life and she has a close and loving relationship with them.  The paternal grandparents are responsible for almost the entirety of X’s financial support.  The paternal grandparents and the mother have a very poor relationship and the history of the matter suggests that if an order is made for further supervised time there is a risk that the parties will not be able to implement it.

Both parties contributed from their wages to pay mortgage payments, outgoings on the home and living costs. The paternal grandparents gifted the parties $60,000.00 to assist with the purchase of their property.  The father worked hard to complete extensions and renovations to the property and that he purchased materials.  The mother was the primary homemaker and parent but the father made some contribution to the care of X and to the housework depending on his availability and that he was primarily responsible for outside work and repairs and maintenance.  In light of the evidence regarding the father's drug use, if the father would receive less superannuation entitlements, he will not so easily be able to squander the same. 

Conclusion:

The Court concluded that on the balance of probabilities that the parties were both perpetrators of family violence during the relationship.  The Court ordered that X shall live with her paternal grandparents.  The paternal grandparents shall have sole parental responsibility for the child.  The paternal grandparents shall promptly advise the mother and the father of any decision they make about a major long term issue for the child.  

The child shall spend time with the mother until 30 June 2022 for not less than two (2) hours each alternate Saturday with such time to be supervised by C Contact Centre or another Supervision Service mutually agreed between the paternal grandparents and the mother and in default of agreement as nominated by the paternal grandparents.  The child shall spend time with the father until 30 June 2022 each Saturday where the child would not otherwise be spending time with the mother for a period of not less than two (2) hours to be supervised by the paternal grandparents. The Court also considered that it is just and equitable to consider making property settlement orders. The parties cannot continue to make joint decisions about the use of the assets in the pool as the contributions should favour the father where contributions are assessed as 52.5% by the father and 47.5% by the mother. This would entitle the father to $136,618.54 from the combined pool and the mother to $121,797.73.

The money held in the trust from the sale of G Street, Suburb H shall be paid as to $89,564.73 the mother and as to $26,618.54 to the father.  Each party is otherwise declared the owner of all assets in their possession or under their control.

 

 

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