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Grandparent seeking visitation

Do we have to attend mediation? What is the success rate of grandparents obtaining visitation despite both parents opposing this?

My partner's father has recently informed him that he will pursue his legal rights to gain access to our 3 young children despite the fact that we have actively opposed this since the birth or our first child almost 10 years ago.  My partner's father has now sought the help of an FRC.

Do my partner and I have to attend mediation?  If we choose not to, what happens next?  Can anyone tell me the percentage of these types of issues that result in the grandparent(s) gaining regular access to the children?  Does the burden of proof lie with the grandparent seeking access?  If so what is the criteria?  

My partner's father has been estranged from us all for quite some time, has gone on to have another child (added to my partner and his 2 other adult siblings).  Both of my partner's siblings also avoid their father and see him under great sufferance (long story).

Our children rarely ask about my partner's father and when they do we answer in as fair a way as possible, mainly so we don't damage our children and hopefully so, if they do seek him out in future, they will go with an open mind (despite our concerns about this person).  We don't cut the subject off but inevitably it never seems to be a long discussion on the part of our kids and they never ask to see him.

At present, even if our kids did ask to see him, we would not allow it as we see part of our role as being to make decisions on our children's behalves until they are old enough to make a decision of this gravity themselves.  We provide our children with (to quote a friend) "an engaging and stimulating environment", they have access to their aunt and uncle, both grandmothers (my father is dead), great aunt, Godparents, and extended family/friends.  

Can anyone tell me what they think about this person's likelihood of succeeding in this matter, please?
I note you posted back in May and have had no replies, so I am not sure where you are up to with this.

Not having the full picture (your concerns) as to why you have actively opposed a relationship between your children and their paternal grandfather, the Family Law Act now requires family dispute resolution before the matter goes to court in an attempt to keep the matter out of court and avoid unnecessary costs.

Family Dispute resolution is mandatory unless there are valid conditions ie. reasonable grounds to believe there has been or is a risk of abuse or family violence.

Changes to the law in 2006 now recognises the significant role of grandparents in children's lives.  The law emphasises parental responsibility, parents are responsible for ensuring the needs and rights of their children are met.

There have been some recent cases where grandparents have been granted contact with their grandchildren. (See other postings on this grandparent forum).

The likelihood of the paternal grandfather succeeding in this matter is a real possibility.

The emphasis today is on the "rights and best interests of the child".   

Dispute resolution would certaintly assist in ventilating your concerns and gaining assistance in reaching a workable solution.  If no agreement is reached the matter would most probably proceed to Court.

All the best, I hope it works out for you and your family.

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
Calista said
The likelihood of the paternal grandfather succeeding in this matter is a real possibility.

Sorry Calista, I disagree. When both parents oppose any form of contact there is less than a 15% chance of it being awarded by the Family Courts. There is a wide discrepancy between what the Family Law Act implies and what existing case law reports.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Thank You, Agog.  It's encouraging to hear a reply like this.  As I mentioned in my email reply to Calista.  My partner & I have now met with FRC staff who deemed that there was nothing to mediate since my partner and I are in accord about opposing contact.  So, now, we wait.

Grandparents and the Act

The key amendments to the Family Law Act relating to Grandparents were :

Paragraph 60B(2)(b) amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a childs life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children.

A new paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the childs parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents. Note the court must consider the nature of the relationship.

We are not seeing much in court judgements that gives Grandparents much cause for excitement and especially the Family Court in WA has made some horror determinations for Grandparents, although there have been approaches directly to the Attorney General recently to further strengthen Grandparent contact arrangements.

The Act was also modified in and also gives greater recognition to the important role that grandparents and other relatives play in a child's life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members. In particular, subsection 64B(2) specifically provides that a parenting order may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to facilitate greater involvement of extended family members in the lives of children.

I also note Subsection 13C(3) provides that an order made under subsection 13C(1) may require the party or parties to encourage the participation of specified other persons who are likely to be affected by proceedings. For example, it may be appropriate to involve children, grandparents or other relatives in family counselling or family dispute resolution. I suspect that an application by a Grandparent could well see the Federal Magistrate sending the parties to mediation under this section as there is nothing to loose and everything to be gained.

In the particular case here it would be interesting to see what reasons the parents put up as to why the Grandfather should have no contact whatsoever. It is not adequate to simply say "we would not allow it as we see part of our role as being to make decisions on our children's behalves until they are old enough to make a decision of this gravity themselves". I don't think that will get you far and in fact it is not your decision and once it gets to a hearing under the Family Law Act it will be a determination made by a judicial officer and you may not like what you get. That is often the dilemma of parties going to court as a third party will be making a decision that on face value you may think is a "done deal". (I did note you say "its a long story, as they usually are")

The Grandfather in this case IS supported by words in the Act, has clearly nothing to loose, much to gain and little cost if self represented. It may be worth entering into some dialogue to resolve this issue. Grandparents are not here forever and for many it is a real shame, that often they depart, not having had any real relationship with their grandchildren. The FLRA and COTA are very involved with this issue of contact for Grandparents.

Executive Secretary - Shared Parenting Council of Australia
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Hi.  It may not be "adequate to say" what you quoted me as saying in my post but for the sake of not going into detail, I did.  I think it's important to remember our children have contact with two-thirds of their living grandparents and ALL of their other blood relatives as well as a massive extended family.  It's an opinion shared by most people who know my husband's father that he's erratic/unreliable/pressuring and pretty stressful to be around and I agree from my own experience.  To this day he is instrumental in distressing his 28 y.o daughter every time they meet (at his insistence/pressuring) and she only sees him every 2yrs as she lives overseas.  Same with his other son, who also lives overseas and has mentioned to my mother-in-law on multiple occasions that he dreads the 'phone ringing in case it is his father.  He dogs all his grown children to see him and behaves in such an overwhelming and needy way.  He has a record of pretty bizarre behaviour outside of the mainstream.  I can understand the cliche about grandparents not being here forever but as I mentioned privately to Calista and Agog our kids are aware their Dad (up until this happened) saw his father regularly and NOT ONCE have they ever asked to meet him.  We openly discuss any questions about him (which are few) and no, we don't shuffle from foot to foot nervously when they do ask.  I don't think they've ever detected that we don't like some of the things he has done/does - even sexual behaviour that used to worry my mother-in-law with regards my sister-in-law whilst she was growing up as well as more recent things toward the end of their own marriage.  We do not, by any means, see this as a "done deal" and it's constantly in the back of my mind what this person will do next - we're at the will of the wind.  We're convinced his motives are purely to salve his own guilt (his modus operendi) about how he damaged his first 3 children throughout their childhoods and exacerbated this further with the way he managed the dissolution of his long marriage to their mother (whom ALL 3 children love to stay in contact with) rather than provide any meaningful input into our children's lives (ie "the best interests of the children").  All our family and friends who know him know what he's up to.  I really don't think he cares one bit if we end up in court, losing to him, and our kids are removed from us regularly to be his playthings until he tires of it and they are ultimately hurt and disappointed.  Yes, we may have to comply with a contact order not of our own making but we both do not want our Darlings going to him at all, so what are we to do?  We're unprepared to hand them over.  All his grown children from his marriage are against what he is doing.  He may have a legal right but the stress, worry and sadness it has bought to my husband and I is almost palpable at times.  He has a small child of his own with a new partner now.  I wonder how he would feel if his child was taken away from him at regular intervals against his will?  If he succeeds it will cause such unhappiness and stress in my husband and I it will be impossible to bear the regular relinquishment of our children and I wonder if eventually our masks will crack in front of them.  I'm sure it will harm them wondering why their parents are not themselves, to say the least.  We think we are protecting our children not depriving them of anything.  Still, if he takes us to court, it's up to someone else.
Help, I would not worry.

When Grandparents from happy, rational families have so much trouble seeing their grandchildren, it is very unlikely that a dysfunctional grandparent would be ordered time over parents.

Grandparents usually get care of their grandchildren in scenarios where both parents are incapable through addiction or mental illness. Spending time with is not something the courts usually do. Of course, a solicitor may happily take their money.

This is not to say that functional, loving grandparents do not have an extraordinary and important role to play in a child's life.

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 and Thanks, Artemis.  Thanks for your words of encouragement and information.  I'm not particularly concerned that my husband's father will be granted care of our children as being granted contact with them - even if it is infrequent and doesn't involve overnight stays.  Unfortunately for us my husband's father is a solicitor so I don't think there's much financial impediment in that respect even if family law was not his field of practice.  Luckily for us, as you point out, our 3 children have 2 very involved and functional grandparents who are very much immersed in their lives and our family is otherwise very close even with my brother- and sister-in-law living overseas.  We often wonder if the reason the kids don't seem to ask too much about my husband's father is because they're pretty fulfilled on the grandparent/family front.  Thanks Again.
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