Danes & Danes and Anor 2013 FMCAfam 281

A maternal grandmother applied that children aged 3 and 5 years live with her and that she share in parental responsibility along with the parents (grandparent).  The grandmother had been significantly involved with both children since their birth.  The grandmother made trenchant criticisms of the mother and of her parenting capacity.  The mother objected to the application on the grounds of her high conflict relationship with the grandmother.

At times the parents had lived with the grandmother.  When the parents lived apart from the grandmother the grandmother would drop in uninvited.  The mother reported feeling dominated by her own mother, and felt that the grandmother wanted to take over her place as mother of the children.   The mother reported a difficult relationship with her own mother since she had been aged 12 years.

The parents  separated leaving the mother a single parent.  The grandmother then withheld the children, and the mother involved police to recover the children.  The grandmother insisted on seeing the children and on one occasion the mother called police to her house because of threatening behaviour by the grandmother.  The mother later re-partnered.  The grandmother objected to the new partner and proposed that the mother separate from him.

During visits the grandmother over-indulged the children by buying clothes and toys to the extent that one child complained to the mother about the disparity (parenting style permissive).  A number of notifications about the mother were made to the child protection department about a range of topics, but the department had not taken action.

The mother moved and did not inform the grandmother about her new address.  The grandmother made strenuous efforts to obtain the address including contacting police, and alleged to relatives that the children were in danger.  During the next period police were called to the grandmother’s house on five occasions due to domestic violence.

An assessor reported that the mother turned to her own mother for support when she was in difficulties and that the grandmother was supportive of the mother at the time but later criticised the mother’s vulnerability, reflecting a conflicted view by the grandmother.  The assessor reported that the grandmother lacked insight into the effect her application was having in undermining the parenting confidence of the mother, and that this was not in the children’s best interests.  The assessor reported that the children were primarily attached to the mother, and that the undermining threatened that attachment.   The assessor drew attention to the grandmother’s continual denigration of the mother and her parenting.

The judge ruled that the amended Family Law Act does not give grandparents any special category of rights above parents concerning a child’s care, welfare and development.  Children do have a right to spend time on a regular basis with and to communicate with people who are significant in their care and welfare, including grandparents.  A grandparent can apply for a parenting order.  The judge indicated that if a parent acts capriciously in isolating a child from a grandparent than a court might issue an order.

The judge found that the grandmother’s relationship with the children was problematic and perhaps manipulative.  The judge found that the grandmother lacked empathy with the children and lacked insight into the impact of her own behaviour on the person who was most important to the children, being the mother.  The judge found that no serious evidence had been presented that the mother and father were unable to provide for the emotional needs of the children.   The judge favoured the orders requested by the mother, and dismissed the application by the grandmother.