Key Practice Areas
Death of a Parent – What Then?
Monday, September 4, 2017
The case of Kelly & Landridge  FCCA 1737 provides an outline of the considerations to be made for the death of a parent, when a loving mother suddenly dies, leaving three children of three different fathers and a maternal grandmother to work out the arrangements for the care of the children.
Background – Death of a Parent
At the time of handing down the judgment, the children were aged ten, eight and three years. Their mother’s life (she was only 26) was lost as a result of a motor vehicle accident. Interim Orders were made only weeks after her death. A family report had also been sought from ‘an experienced social worker’ in that time. It was a complex situation for all involved. Judge Baumann considered the report; however, he did not follow the recommendations for the living arrangements for the children.
At the interim hearing, Judge Baumann determined that the children should live with the applicant father, who was the biological father of the youngest child, Y. The oldest child Z (now ten) had gone to live with his biological father, but by the time of the final hearing, he was soon to be living with the maternal grandmother.
Outline of Case
A sad aspect of the case was the breakdown of the relationship between the maternal grandmother and the father. It came down to comments that the father was not the father of the child X. The father retaliated and said that the maternal grandmother was not the mother of the mother as the mother had been a foster child. This ignored, on both sides, the fact that the parties were, and are, interested in the care and welfare of the children, the father is the biological parent of one of the children and the grandmother has standing in her own right to bring an application.
X had never met his biological father, although he knew of his existence. X had the most to lose in this tug of love. The stability he had known with his mother and two siblings was shattered and the only father figure and major role model he had had would be removed from him if the grandmother’s application was successful.
Before her death, the mother had undertaken some counselling. There was argument as to whether she was considering leaving the father. Judge Baumann placed weight on the fact that she had not taken steps to remove herself from the relationship. He also noted that the mother had put into place a will, prior to the relationship with the father and Z’s birth, that provided for the maternal grandmother to be appointed as guardian for her children.
It concerned Judge Baumann that despite the grandmother’s social science qualifications, she did not appreciate the attachments that the child X had and had a lack of child focus. Grandma was acknowledged to be ‘devoted’, however, her clear animosity to the father was a reason for the children X and Y to remain in the care of the father (the application did not seem to cover the child Z) who was by then 24. Further, there was a subtle undermining of the father’s role by the grandmother and this had not abated.
Judge Baumann commented that this was a complex family situation as the grandmother had also sought to involve Mr N the father of X and Mr D, the father of Z, had not taken part in the proceedings. The children needed to be genuinely supported.
The children had also suffered from the disruption in their sibling relationships because Z had moved to live with his father, and the father’s new partner, for a time. By trial, it was indicated that Z would be returning to the grandmother’s care as a result of a more child focused approach being taken for his care. This would involve major adjustment for all children, especially Z.
Ultimately, Baumann J decided that X should not suffer the loss of the only father he had known, who played a primary role in the child’s life. After considering the sibling relationships, and the inter-parental and grandparental relationships, Judge Baumann decided that the children X and Y should live with the father and see the grandmother for alternate weekends as well as significant events such as the mother’s (not the grandmother’s) birthday, Mother’s Day and what appears to have been the anniversary date of the mother’s passing.
Baumann J also suggested that the grandmother should encourage the child Z to go to the father’s home to spend time with his siblings there. He ordered counselling to improve communication. Additionally, the father was granted sole parental responsibility, however, the father is to confer with the grandmother, but in the event of disagreement, the father would have the decision making responsibility. In addition, before the grandmother sought to introduce Mr N or his family to X, via telephone or in person, she was to provide a month’s notice. Judge Baumann seemed to consider that an injunction would not be sufficient to stop the grandmother from addressing this aspect.
So, what can we learn from the unfortunate situation of a death of a parent is to:
- have clear orders for the care of children – especially so where the parties separated;
where there are children of different father’s/mother’s, the situation becomes more complex,
- have a current will in place to appoint a guardian for the children – it gives evidence of your desire but will not override a decision which is being made in the ‘best interests of the children’ under the Family Law Act 1975, and
- look at the care arrangements for the children and the dynamics of the households and tread carefully in working through what is in the best interests of the children, rather than the adults concerned who however well-intentioned may in fact be doing the child’s emotional development more harm than good.
The court will decide what it considers to be in the best interests of the child, after taking into account these aspects.
Judgment Mentioned in This Post:
Title: Kelly & Landridge  FCCA 1737
Date: 31 October 2013
Court: Federal Circuit Court of Australia
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