"What happens when the Grandmother has been looking after the kids for a while and now mom wants them back?"
CARLYLE & CARLYLE AND ORS [2019] FAMCA 214 (31 JANUARY 2019)
This case involves the right of the mother to the custody of her 7- and 11-year-old children who live with their grandmother.
ISSUES:
1. Whether the children should be placed under the care and custody of their mother.
No. A minor is under the parental authority of his/her mother. In the exercise of that authority, she is entitled to keep the child in her company. There being no sufficient proof of any compelling reason to separate the minor from his mother, custody should remain with her. In this case, both children were exposed to domestic violence in the home of their mother. The mother had five violent partners and had “Apprehended Violence Orders” in respect of at least three of them. [1] She has been using marijuana since her mid-teens and methamphetamine known as Ice since July 2015. [2]This is the time when the maternal grandmother took D, 7-year-old boy, into her permanent care. The grandmother would have also kept C, 11-year-old girl, in her custody if the mother had not arranged for such child to stay with her father.[3] The father was subsequently convicted for sexual assaults on C between September 1, 2015 and March 3, 2016. [4] However, the children may spend time with their mother as agreed in writing between the latter and their grandmother. [5]
2. Whether the maternal grandmother has sole parental responsibility for her grandchildren.
Yes. In all questions, regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration".
The children had been in the care and custody of their grandmother for three years. As maternal grandparent who have demonstrated her love and affection for the children, she claimed to be in the best position to promote the children's welfare.
Section 61D(2) of the Family Law Act 1975 provides that:
A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) Expressly provided for in the order; or
(b) Necessary to give effect to the order. [6]
For that reason, the Family Court of Australia orders that the parental responsibility of the parents arising by law is intentionally taken away. The Court does not agree that meaningful relationship exists between the children and their parents. Two of the parents were absent from the proceedings by choice. [7]The Court rejected the submission that there would be no harm if the father would have access to information about medical treatment and school progress of C, including school photographs. C’s safety is the most significant matter. The knowledge that her father is receiving such information represents a risk of undermining that sense of safety.[8]
Courts generally affirm that parents have the legal right to care for and determine what is best for their children. It will not deprive them of custody, absent any imperative cause showing their unfitness to exercise authority and care.
When grandparents seek custody, the court balances the parents' rights with the child's best interests. Grandparents who believe their grandchild would be best living with them need to present a compelling case.
[1] Carlyle & Carlyle and Ors FAM CA214 at (6), 2019
[2] Carlyle at (7)
[3] Ibid at (8)
[4] Ibid at (10)
[5] Ibid at (5)
[6] Ibid at (16)
[7] Ibid at (19)
[8] Ibid at (23)