CARLSON & OTHERS & BOWDEN [2008] FamCA 1064
Facts
This case concerned competing parenting applications for a young boy aged 4 at the time of trial. The main parties were the paternal grandmother and her partner, as well as the child’s parents. Both parents had considerable risk factors ranging from drug dependencies, family violence and unaddressed psychological conditions. The mother had re-partnered and given birth to a new child who was only a few months old at the time.
The father accepted that he was not suitable to be the child’s primary carer. The case, then, centered on whether the child’s best interests would be advanced in the mother’s or grandmother’s care.
It is a particularly instructive case in circumstances where a grandparent (or indeed anyone other than a parent) brings forward an application seeking Orders for primary residence of a child. It shows the competing considerations a Court must weigh in these types of cases, especially where risk issues a#B4CFE3
Competing proposals
The parties sought the following: –
1. Father – to eventually have custody of the child. His Orders were not clearly defined as he was self-represented.
2. Mother – for the child to live with her and her new partner, together with their newborn baby.
3. Paternal grandmother – for the child to live with her and her partner as the main carers and spend time with the parents periodically.
Below are some of the most relevant factual considerations the Court accounted for when deliberating final orders for the child.
The Mother’s new partner
The Court was very critical of the mother’s new partner. In particular, the evidence revealed that had an aggressive demeanor and was predisposed to verbally abusing others, including the paternal grandmother. Examples of the risk factors associated with the mother’s new partner were: –
– A criminal history involving robberies and general use of violence.
– Drug dependencies, identical to the mother and father.
– Low emotional maturity.
– An account of having intimidated the grandmother during a changeover, holding an unidentified object wrapped in a cloth. When asked about the event, his response in the witness box was that his intention of approaching was to “tell them to piss off – to go away and leave him alone” (according to him, a response attributed to the paranoia he developed after being in jail). The Court preferred the grandmother’s view of the event, which was that he intended to intimidate them.
– Subpoena evidence revealing accounts of other persons, such as hospital nurses, expressing concern for his treatment of the child (e.g. during a hospital visit he was found to be pressing on the child’s bruises as a type of “game”).
– General verbal abuse (e.g. calling the grandparents “fuckheads” as he passed by them once at Bunnings).
Taken as a whole, the Court did not favorably regard the mother’s new partner. The evidence, coupled with the mother’s attempt to excuse and justify her partner’s evidence during trial, caused the Court to doubt whether the mother and her new partner would not do psychological harm to the child. The mere fact that the mother chose this partner also did not bode well for her. It was found to greatly compromise her role as the child’s primary carer.
Demands of family life with a newborn
The Court considered the pressing demands for the mother and her new partner of having a newborn aged only a few months old. In particular, the Court considered this in the context of the demonstrated immaturity and lack of capacity by the mother and her new partner. The Court opined that the mother’s new partner was highly insensitive in his approach and that, the two of them together, could not be relied on to meet the proper needs of the child.
After having assessed the mother’s parental capacity as sorely lacking, the Court considered that their newborn child would be more than enough of a demand for the mother and her new partner. Adding the 4-year-old child to the equation would prove to be too cumbersome given their assessed capabilities.
The Court sided with the view of a medical expert in the case, namely that neither the mother nor the father was a “good enough parent”.
Drug dependency
The mother, father and the mother’s new partner had a history of drug addictions. It was borne out of evidence that the mother and father would inject heroine together during their relationship. There was also evidence that the mother’s new partner was psychologically affected by bouts of psychosis arising from prior drug use.
The paternal grandmother had no such risk issues.
Despite the parties producing clean drug tests at the time of trial, the Court was obliged to consider an extensive history of drug usage and the real possibility of relapse when making parenting orders for the child.
The parents’ maturity and capacity to parent
As above, neither parent was assessed as being a “good enough parent”. The phrase comes from work done by the British psychoanalyst Winnicott and emerges from the notion that parents need not be perfect to be effective parents. It recognises that parents will inevitably bring failings to their task as parents and that children can tolerate, even flourish, despite them. Parents need only be “good enough”.
In this case, the Court found that neither the mother, father nor the mother’s new partner met this threshold. Neither of them were “good enough parents” to justify having the young child live with either of them.
The child’s primary emotional attachment
It was held that the child’s primary attachment was to the mother. Therefore, any change of residence would necessarily cut that attachment in favour of a longer-term goal, namely ensuring the proper welfare and development of the child and minimsing risk of harm. It was generally recognised that severing the bond to the primary attachment was not ideal, however it was preferred over continuing the existing situation. A continuation of the arrangements would mean the child would remain exposed to psychological harm arising from the mother’s immaturity and incapacity as a parent (together with her new partner). It also meant that the child’s relationship with his father may not be prioritized or facilitated, as the mother’s new partner held a negative view of him generally.
As a result, the Court found the child’s best interests would be best served by severing the primary attachment bond in the short-term.
Significance
This was a case where a father’s own mother, the paternal grandmother, brought a case against his interests. It is perfectly possible for a person other than a parent to bring a case seeking residency orders, however rarer still to obtain live-with orders as against the parents. Whilst there exists a legislative presumption that it is in the child’s best interests to have a meaningful relationship with both parents, the need to mitigate against harm will take priority when the evidence warrants it.
In this case, both parents had much work do on themselves before they could obtain primary care of the young child. They needed to remain drug-free, complete the PPP (Positive Parenting Program), and complete drug testing successfully.
This case shows that a grandparent is a legitimate first option for primary care when the parents prove incapable of meeting a child’s care, welfare, and development.
