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What rights does a biological mother have regarding seeing her child?

Paternal Grandparents have care order.

Hi there,

I'm not sure where to post this or what topic it would come under. I'll give a brief outline of whats happening and hopefully someone can offer some advice.

Basically, my partner has a child around 8 years of age, the child lives with their paternal grandparents due to a permanent care order that was done when the child was around 1, for the last three years my partner has been doing absolutely everything she can to get more time with her child, (this is equating to no more than once a month, sometimes longer), needless to say, the grandparents are making this quite difficult.

 My partner has no criminal record, is not a drug addict and as far as i'm concerned, there is no reasonable explanation as to why she shouldn't be allowed to spend time with her child or even have some form of shared custody with the grandparents. For the last 3 years that she has been trying to get back in to her child's life, visitation has been getting less and less frequent and they absolutely refuse to let her have any time alone with her child.

The fact is, the only mistake my partner ever made was falling pregnant when she was 15 to their son, (who was at that point a drug addict), my partner and myself are in agreement that wasn't a safe environment for a child and they were right at the time to remove her from the situation, but my partner left their son almost immediately after the child was taken, went and finished high school and tried to recapture some of her life that she had missed by being in this unhealthy environment; she even left the state to achieve this properly and remove herself from the bad influences that had been part of her life, when she came back to the state a grown up, more mature 21 year old, she had a full time job, had removed the bad things and people from her life and wanted to see her child on a more frequent basis.

Make no mistake, she had extreme gratitude for the grand parents for stepping up and providing a better environment for her child, but she wanted more time with her child and to make up for the few years that she had been away, they refuse to relinquish any control and make it very difficult for her, for 3 years they have treated her as 16 year old child and unfortunately she has accepted this, simply because she didn't think she had any rights to do otherwise. Obviously, this opinion has changed and she is quite tired of being treated like a distant relative with no connection to the child.

 Up until last year, the child was still calling her mum and then stopped and started calling the grandparents mum and dad, the explanation that they offered was that a psychologist told them that it would be better for the child to call them mum and dad and therefore the child was instructed that she could no longer refer to my partner as mum. (she still calls her mum in any moments they are not around however). My partner always felt as though she needed to regain their trust, but after 3 years of trying and trying, she is getting nowhere, on the other hand, the childs father, (their son), has been in and out of prison over this course of time, they say that they refuse to help him in any way shape or form, yet a few weeks ago, he spent the night at their house with his daughter, yet my partner is not even allowed to go near their door.

This situation is so unfair it's not funny and it's really taking a tole on my partner and i, it pains me to see her getting so mistreated and the real loser in this situaton is her child, they are definitely not acting in the childs best interests by estranging the biological mother and child from each other to such an extent, and really as i'm sure everyone can agree, it should always be about the child, not the individuals involved.

Any help would be hugely appreciated, we have tried for so long to not involve courts and even requested mediation, (which they refused), we need to know what the process is and how we go about turning this situation around.

Thanks for reading.
mj1981

Last edit: by monteverdi

from what you have posted, your partner being the biological mother has every right to see her child.
from the first of july, family dispute resolution will be your first port of call - the ATTORNEY GENERALS ORDERS, see how you go if that fails then family court may be your only option.

If your partner has not done so already, she should consider writing a letter to the parents explaining the long term stability she has had in her life and outlining a stepped up visitation regime.  This is not really necessary for the child, given that she is 8, but more for the grandparents, to get used to not having her so much in their lives. Keep a copy.

If this is not responded to, or has no effect, then mediation is the next step in the process.

This would occur at a family relationships centre. The first 4 hours are free.

Failing this, the next step is court. There is a lot to know before you enter the court process. This site can help.

Proactive things to do, include your partner enrolling in a parenting course. This may seem offensive (it does to a lot of people) but it takes an argument, the wind out of the sails, of the paternal grandparents. It shows your partners committment to her child and would be looked on very favourably, should the matter progress to court. It is something court would order, regardless.

Good luck and stay in touch.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Hi mj1981,

While a lot of the above is good advice, the information relating to courts is inaccurate.

You mentioned a "permanent care order". I can only assume you mean some kind of order under state child welfare legislation (law).

To assess your legal situation we need to know what state your in, what court issued the order and what the order states.

Whilst the term custody is no longer used in Family Court matters the term and its original meaning still exist in state legislation.

On the face of what you have said, your case is a difficult one and there may be only a small number of options available.

If it is that case that the state child protection services by whatever name, have custody of the child then you need to approach them first depending on your state.

Ease of reading

Hi everyone and thank you for all of the responses.

To answer the last post, We are in Victoria, as i mentioned the child was one when taken by the grandparents, my partner went to NSW to be with her own mother and get her life back on track and returned to VIC when the child was 5. It was during this time in NSW that the grand parents had the care order taken out, my partner was never contacted about this as they said she was uncontactable.

I'll double check with my partner but I'm fairly certain the grand parents have full custody of the child. It seems wrong that this can go ahead without the child's mother even being informed but that's what happened.

If you knew my partner, you would see how unfair this is. She met their son when she was 12 and he was 17. She was estranged from her own parents (for very serious reasons that I won't go into for her privacy's sake) but she had no one willing to look after her or help her and allow her to grow through her teen years, in a normal fashion.

So she met this guy and by the time she was 15, she was pregnant. He was a drug addict who was also selling drugs to help make ends meet. Through all of this, my partner never touched any of that stuff however just accepted this to be her life as she knew nothing else. Her partner cheated on her when she 9 months pregnant and once again she was left not knowing where to go or what to do.

He was a bit of a father figure to her as her own wasn't around, (and not wanted around either), and he was a bit older. Then, only a year after the child was born, the grand parents came and took the child.

This, of course, plunged my partner into a pit of depression for a long time. No surprises there really, given some of the things she had been forced to endure at a very young age. She decided to get away from VIC and try and reconcile with her mother and get things back on track for her child's sake. The whole situation makes my heart break, she has been given a raw deal every step of her life but she doesn't complain. In fact I tend to get more riled up about it than her; almost like she is just used to life being cruel to her and just expects and accepts it.

I feel she has been completely taken advantage of by a lot of people, including her ex partners parents. Especially when you consider that the whole reason her child was taken was due to the activities of their son, who they refuse to help in any way. These are the people raising her child. I know it's a very difficult situation and nothing is ever just black and white, but something needs to change. Even if it turns out that she gets a couple of unsupervised visits with her child a month; anything is better than how she is being treated at the moment.

I maintain my opinion that a child should have access to their mother. How long can my partner continue to be punished for a few silly choices she made when she was a teenager?

Thanks again everyone and i look forward to reading your responses.

mj1981

Last edit: by Artemis

Hi mj1981,

I now know that you are in Victoria. The next step for me is to identify under what jurisdiction an order was issued.

If it was issued under state child welfare legislation then you need to approach them and the grandparents will have very little to do with the process.

It may be an custody order issued under state legislation that does not involve child welfare.

It could also have been issued by the federal Family Court.

The grandparents may be responding to the fear of the child being taken from them so they may well do all they can to limit access in the hope that your partner will give up.

It is better to get strong assessment of your situation before approaching the grandparents. But do this quickly.

If an order exists then you will find it at the Family Court or the Magistrates Court closest to where the Grand Parents live.

Your partner is entitled to a copy of this order although a fee of $20 - $30 may be charged. If you find the order then ask for a copy of the "Affidavit of Service" filed for the proceedings from which the order was drawn.

If you can copy and paste the order here then I (and others) will offer advice on how to go about improving the situation.


Please replace any names with [mother] [paternal grandmother] [child] etc. This may be a legal requirement!

Your partner has a good chance if it is not state welfare legislation. The biggest obstacle will be to reach an outcome that is mutualy acceptable without long and protracted proceedings.

In general, the law is more likely to place a child with biological parent(s) unless there are safety or abuse issues.

The opposition before you is -

Abandonment. This is a very strong point normally but given that your partner was only 15 at the time, this is far less an issue.

The "Status quo". The courts are not going to suddenly change the child's world by placing the child with your partner. The options are the establishment of significant contact or a transitional change of care.

It would seem that you partner simply wants significant contact in an warm and unmonitored environment.

Personally (just my opinion), as the child has spent most of his/her life with the grandparents, a complete change of custody would be inappropriate unless it was done very gradually AND the grandparents were fully assisting. The latter is not likely.

If the grand parents are hostile to change then they most likely have the resources to make things very difficult. It would be better to assess the overall situation so that decisions can be made without anyone feeling threatened.

I see that the mum is now about 23, the child 8 and I assume you are 27.

I am a 43 year old single father of two with quite some experience with these issues.

Once I know what ACT of legislation (law) that the order was issued under then I can download that ACT and read it. I live in Queensland so state law is different here, however Family Court law is the same across Australia.
I agree that it is crucial to know whether this is a DOCS or FM/FCA order, but for now, in either case, a useful approach may be a Legal Aid Conference, (if eligible). They can do those whether it is a State based Care Order, or a Family Law Act order. The advantages include, that they happen quite quickly, are free (with a small contribution), can take place by phone link, and if unsuccessful you will have a s60 certificate (which is only in the event that it is a FLA order).
Worth a thought.
I'll get my partner to gather the said information and i'll post it as soon as i know.

Thanks everyone, it's quite comforting to know that there is somewhere we can go to talk about these things. It's always difficult when you only have each other to bounce things off, it's hard to know what is fact and what is fiction.

Speak soon
mj1981
OK, I am new here and I don't know how to use this forum as well as others obviously do.
monaro said
Newmember said
While a lot of the above is good advice, the information relating to courts is inaccurate."]
with all due respect, you need to read the posts more accurately, "may" does not imply the only option, and thus in fact accurate.
monoro is obviously referring to his post -
monaro said
from what you have posted, your partner being the biological mother has every right to see her child.
from the first of july, family dispute resolution will be your first port of call - the ATTORNEY GENERALS ORDERS, see how you go if that fails then family court may be your only option.

However in reality my original comment related to -
Artemis said
If your partner has not done so already, she should consider writing a letter to the parents explaining the long term stability she has had in her life and outlining a stepped up visitation regime.  This is not really necessary for the child, given that she is 8, but more for the grandparents, to get used to not having her so much in their lives. Keep a copy.

If this is not responded to, or has no effect, then mediation is the next step in the process.

This would occur at a family relationships centre. The first 4 hours are free.


Failing this, the next step is court. There is a lot to know before you enter the court process. This site can help.
<snip>

The reason I made this comment is that there is an assumption here that the current order is a Family Court order.

Family relationship centers do not provide services for parents when the child is in the custody of the state under state welfare legislation.

In any case the outcome of ANY counseling cannot effect any change to the current contact arrangements should the existing order be issued under state legislation.

Furthermore, should the current order be issued under state legislation, the federal Family Court has jurisdiction to act whatsoever.

See Family Law ACT 1975 (as amended) section 69ck -

FAMILY LAW ACT 1975 - SECT 69ZK
Child welfare laws not affected

             (1)  A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

                     (a)  the order is expressed to come into effect when the child ceases to be under that care; or

                     (b)  the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

             (2)  Nothing in this Act, and no decree under this Act, affects:

                     (a)  the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

                     (b)  any such order made or action taken; or

                     ©  the operation of a child welfare law in relation to a child.

             (3)  If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first‑mentioned court may adjourn any proceedings before it that relate to the child.

Having mentioned the above, I stand by my original statement.

I was in way intending to degrade any person or the advice that they may have offered.

To be honest, I find myself in a defensive position for the fact that I offered advice.

This world is too large for me to have to be defensive. There are so many other places I can be.

It is not in my nature to wish ill intent. Please accept this.

I am hoping to make a positive contribution.


New member makes a valuable contribution

Thanks for the "pick up" on a protection order (something I missed). I am not familiar with this term. It is a Victorian term.

A quick google reveals more about this particular type of order. A google also reveals a form to request the situation be reviewed, assuming it would depend on the type of protection order and whether the child is a ward of the state, or the grandparents are her legal guardian.

I believe you are correct that the Family Law Court will not have jurisdiction if it is a state matter.

In any case, another option may be too seek legal advice from legal aid, if you qualify. Or a free legal service, in your state.

As New Member says, you need to have all of your facts assembled in short order to know how to proceed and to not let any more water pass under the bridge.

It is important to know what your rights are, because you are not in a typical parent/child situation.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
I may have misled MJ when referring to DOCS. That is how we refer to the Dept of Community Services in NSW. It appears from the scenario presented by MJ that it is almost certainly a state welfare order, and I note that the original order was almost certainly issued in Vic. The Victorian equivilent of DOCS is Child Protection and Family Services. Their web page appers to be under going redevelopment but it is here;
Family and early parenting support - Department of Human Services, Victoria, Australia

The info provided is otherwise OK, that is to say, the FM or Family court lacks jurisdiction if it is a State welfare care or protection order. I'm from the other side of the border and have nothing to offer on practice and procedure in the state court. Good luck!
NewMember,
what does one say?  its moments like these you need to whisper,
i did use the whisper tab…….. cheers

Privacy

There are many warnings on this site that the public forums can be searched.

Perhaps I should create front page news and a headline item for this topic to make it even easier for Google?

mj1981, you might be better attempting to join a group such as SRL-R which has closed areas for confidential material

 Senior Site Moderator and Administrator
The first hurdle I see is the status quo your partner is conceding to of the grandparents have more right of contact to her child.

The second is the time taken to correct this status quo.

3rd, if you wait till July you are going to have no choice but go through mediation.

4th , an application in the normal form in the FamCA that relies on the turnaround in your partners life from a 15 year old not good parent material to a mature parent in a long term stable supportive monogamous relationship to show changed circumstances I think will cause the FamCA to supersede the State Order as a Federal and Superior Court of Record.

This should give the SRL group a start point if you join them by following the links http://flwg.com.au/srl-r/index.php?page=start and they agree.

Your daughter must not try to exclude the Grandparents (GPs) but I would suggest shared care or biweekly interaction on their part.

At 8yrs old your daughter is able to understand the parental alienation the are attempting by claiming they should be called the mum and dad. The USA term this as GPs from hell, maybe a Google will show you and the SRL group what I mean.

Moderator Note
Parts of this Post have been deleted in accordance with previous warnings given to this poster.

Last edit: by Sisyphus

I originally posted this in February.

Several posters have started making suggestions for legal options via the telephone or directly emailing a site member without knowing or understanding the case in question or having any legal expertise or experience. In several cases these suggestions have been incorrect to the point of causing potential harm to the case.

It is recommended that if you are asking for (or receive) legal options that you check the posters credentials very carefully

 Senior Site Moderator and Administrator
so whats the concensus, docs or equivalant or court. from my understanding of how to get your child back from a protective order (i know people who are in this situation) you will have to do what they want docs wants you do to.

since the orders were pursued by them in the first place it seems very unlikelyunless a set of contact orders were endorsed by them the mother will get the spedn any tim withg the child. and they wont do that until the mother has fullfilled alot of obligations for them.

for someone i know, even if they are gong to give the child back eventually they take a long long time to do it, they have the parent under go courses, have a case worker, spend supervised time with them for at least 2 years.

for the mother it wil be a long time coming before she gets the child in her care.

what im trying to highlight is that when protective orders are in place its not a court battle, but a process that is negociated and followed through with you and docs. for docs a short term solution is 2 years. so if you wanted to see you kids short term would two years of fullfilliing their guidlines/obligations and seeing your child in with supervised contact at a docs office, a park with a supervsor.
they dont just give up a child, docs works very very closly with the children, the parents, the parties and the court .
For the mother it may be a long time until she even does something normal like drives around with her child in her car

Last edit: by monster


Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
To be informative a lot more, probably sensitive, information will be needed from the poster. This can only be posted in the hidden parts of the forum like the SRL section.

It may be a long time, if ever, that the child is in the mother's care. I think that all the posters partner is highlighting is the mother's wish to see the child on a regular basis and develop the relationship further.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
MJ1981 does say "and they were right at the time to remove her from the situation,"
  Who is "they", the way I read it "they" are the GPs. It sounds to me the GPs made treats of DHS intervention and then sought a Order of the Court claiming the mother could not be contacted.

Has the mother proof of contact with the child or GPs from when she was 15 to 18yrs, if so that might be enough to show the GPs obstructed justice by false claim of unable to serve the documents when the Order was sought.

Therefore an application to revoke the Order in the Court that made the Order without DHS intervention, with provable changed circumstances, 15yrs now 21, in a long term stable supportive monogamous relationship. Plus MJ1981 says "For the last 3 years that she has been trying to get back in to her child's life, visitation has been getting less and less frequent and they absolutely refuse to let her have any time alone with her child." This says to me the GPs are in breach of Family Law and the right of a CHILD to know all their family. This includes your partners Parents, brothers and sisters, at 8 years the child is old enough to interact with the NSW family members and this is being prevented by the GPs.

Who sought the Order is the most important thing here for a proper start point to be known.

Moderator  Note
Parts of this Post have been deleted in accordance with previous warnings given to this poster.
This is the second public warning.

Last edit: by Sisyphus

NJ, No wonder your post was deleted. A High Court Appeal from a Care Order 7 years ago in circumstances where the DOCS intervention was probably warranted??? Give me a break. That is ridiculous advice.
My point is it looks like the Grandparents (GPs) sought the Order not Doc's or DHS Protection as it is know in Vic. If DHS had sought the Order the mother would have been served. If it was the GPs who got the Order made, not DHS then DHS would not be involved in seeking to revoke or quash the Order now.

Hence I said "Who sought the Order is the most important thing here for a proper start point to be known."

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