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Insights

Modern families come in all shapes and sizes.  The traditional nuclear family, consisting of mother, father and the children, is increasingly being surrounded by other family units including blended families, consisting of parents, step-parents and their respective children, same sex parenting families, as well as situations where grandparents are increasingly being asked to raise grandchildren in circumstances where their own children are either not able to do so or due to the death of the parent.

For the most part, disputes that come before the Family Court involve two parents who cannot agree on the arrangements for their children.  In all cases, the court is guided by making orders that promote the best interest of the child.  In the recent case of Winston, the court was required to determine where a 9 year old child should live in circumstances where the child’s mother had passed away suddenly in 2012.  Prior to the death of the child’s mother, she  had been living with her mother and spent very little time with her father.  Following the sudden death of the child’s mother, she lived with her maternal grandparents.  The court had to consider whether the child’s best interests were best promoted by remaining living with her grandparents or being placed with her father.  In the case of Winston, the child’s wishes were not able to determine the issue as the child was conflicted and indicated she wished to live with both her father and grandmother.

The court had to consider whether the factor of “parenthood” tipped the balance in favour of the father.  Whilst it may be the norm in our society for children to live with their biological parents, the court in this case had to consider the applications of two capable people who were each able to provide for the child.  In determining what would best meet the child’s best interests, the court had regard to looking at a likely effect of any separation from the parent, any other children or other person with whom the child had been living with.

The impact of changing the child’s current living arrangements and moving her from the grandmother’s household to the father’s household would involve many further changes in her life including changing a geographical location, changing her school, changing her circle of friends and significantly moving from a household where she was the only child (in the grandparents household), to a household that consisted of four adults and four children.  It was the father’s position that he believed his child would adapt to the changes.

The court had regard to the expert evidence of a psychiatrist who found that it was very important for the child not to experience any further sudden and unpredictable changes in her life.  The father’s proposal would mean a complete change to the child’s living arrangements.  The court ultimately found that maintaining the current arrangements, the child living with the grandmother, would mean that she would not need to adapt to any further changes in her life in the context where she had had to adapt to a very significant change in her life at the time of her mother’s passing. 

The court made orders for the child to live with her 61 year old grandmother and to spend time on alternate weekends and times during school holidays with her 32 year old father.

Want to know more? Contact the Kells Family Law Team.