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Grandparents Denied Contact

Under the Family Law Act 1975 amended 2006, a child has a right to spend time on a regular basis with, and communicate on a regular basis with significant people other than their parents such as their grandparents and other relatives (Family Law Act 1975 Section 60B 2b).

This right is independent from the right of the child to be cared for as in rearing or parenting. This right is independent of being a friend of the parents, independent of the parents marital status, and of a pre existing relationship.

This is the child's right to develop a meaningful (attachment) relationship with their grandparents.

It is about a relationship between the child and his or her grandparent rather than about the wellbeing of the parents.

A Grandparent makes an Application to the Court in the form of a Parenting Order. The application of a parenting order to the Court is to have contact with a grandchild and is not to do with the parenting of the child, but simply to have a relationship with the child. 

The Court should agree that the child has the right to know and have contact with their grandparent (Section 60B 2b of the Family Law Act 1975).

Having established that the child has that right, the court must then decide whether contact with their grandparent will be in the child's best interest.

In cases when grandparents seek contact, the matter has come before the court because of conflict, and or, dysfunctional parents, or some other reason. When a good Judge decides that the grandparent/grandparents are good people and that the child will benefit from a relationship with them, then all is good and a child is granted their rights to have contact with their grandparent despite parental objection. In these cases the child cannot and will not be harmed if and when parents object, as so many do on the following common grounds.

It is a fact that a parent or both objecting parents will often say that their relationship with grandparents is in conflict saying that if you allow our child to have contact with the grandparent it would cause stress for a parent and then play on this tactic saying that a stressed parent cannot be the best parent for the child. It is a fact that objecting parents will intentionally create problems such as false allegations of abuse which are intentionally designed to create problems and divert justice, avoid mediation counselling and dispute resolution, engender sympathy, falsely obtain legal aid funding, all in a ploy to keep their child from their grandparents because of spiteful reasons unrelated to the best interests of the child.  This is deliberate destruction of potentially healthy relationships between children and their grandparents for no rational reason and referred to as abuse of the elderly and the young.

The court may order a Family Report to help it determine the issues. In their undertaking to write a family report for the court the Family report writer has an overriding duty under the Family Law Act 1975 (Division 15.5.5: 15.59) to:

(3)     (A) Give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness's knowledge and capability;

 (B) Conduct the expert witness's functions in a timely manner;

 (D)   Consider all material facts, including those that may detract from the expert witness's opinion.

There are Family Report writers as described by Lord Woolf. Lord Woolf in the interim report, Access to Justice (Concurrent Expert Evidence in the Administrative Appeals Tribunal: The New South Wales Experience; The Hon. Justice Garry Downes AM President of the Administrative Appeals Tribunal Paper presented at the Australasian Conference of Planning and Environment Courts and Tribunals in Hobart 27 February 2004) said:

Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.

A good outcome for grandparents was the case of Bright v Bright (1995) FLC 92-570 where paternal grandparents sought access for part of a weekend each month to their two and a half year old granddaughter, against the wishes of the parents of the child. The parents of the child were still together and for some reason did not want the husband's parents to have contact with the child. The late Mr. Justice Treyvaud started his judgment by saying: "This case has not taken very long to hear or to determine and one might be pardoned for thinking that it is an unimportant piece of litigation. That is not the position at all in my view. Proceedings of this sort between grandparents seeking access to their grandchildren, and the parents of the children opposing access, or attempting to restrict it, are becoming quite commonplace, which in general is a matter of regret, in my view. We live in a society in which the term 'the nuclear family', which means father and mother and the children, is well understood. The community seems to accept that all that is needed for the proper upbringing and development of a child is to be part of a nuclear family. If that were the common perception that is not one which I share. Kay J, in a decision to which I was referred, of Stevens and Lee, 1991 (FLC) 92-201 made remarks which are similar to those which others may have made and certainly which I have made on occasions. His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family." In that particular case the court overruled the parents objections and allowed the grandparents to have access for one weekend a month, the judge saying that it was unfair to deny a 2 1/2 year old contact with her grandparents because of a falling out between her parents and her grandparents.

Since the Change to the Family Law Act in 2006 there have been a number of published cases involving Grandparents where orders were made to allow a relationship to develop between the Grandparents and their Grandchildren.  These cases have been mentioned elsewhere on this site but for clarity will mention them again here.

In Sampson & Jacks [2008] FamCA 176 (19/3/2008) orders were made for the Maternal Grandparents to spend time with their Grandchildren.  The parents were the Grandparent's Daughter and son in Law who were in an intact marriage.  Despite expert opinion recommending against the "Spend Time" order, Justice O'Ryan was concerned at the "Sleeper Issue" which would eventually arise in that if cards were to be sent this would inevitably lead to questions from the children about their grandparents.  Expert evidence was also given about the issue of "Avoidance" in relation to trauma experienced by the mother and the danger a lie represents.  It should be noted the orders allowed for the initial periods the children spent time with the Grandparents was to be under the supervision of the Counselling Services at the Sydney registry of the Family Court.  The original Decision was confirmed by the Full Court after an appeal was mounted by the parents. Jacks & Sampson [2008] FamCAFC 173 19/11/08.

In Pearce & Gough and Ors, Justice Strickland made some orders by consent and others at his discretion allowing the Grandchildren to initially communicate with their Grandparents, and then spend time after 6 months.

In McKenzie & Edwards [2006] FamCA 1314 (17/11/2006) the court concluded that the parenting orders provided an opportunity for the child to develop a relationship with the grandparent.  The court held that the best interests of the particular child was served by affording the child the opportunity to develop a relationship with the Grandparents.  This was held despite the absence of an established relationship between the child and the grandparents, and the frayed relationships child's parents and the grandparents.  In this case the Family Law Act acknowledged that the Family Law Act emphasises the significant contribution that grandparents cam make to a child's care, welfare and development.

While the "best interests of the child is the paramount consideration" Section 60CA  "how a court determines what is in a child's best interest" Section 60CC is misused by parents and some legal advisers.  Parents intentionally refuse to cooperate and attend mediation, instead they inflame the situation by relying on fabricated arguments of stress or abuse to refuse and avoid mediation and this is unethical. The problem lies with the parent not to deprive the grandchildren of a relationship with their grandparents.  The best interests of the child is for the parents to exercise parental responsibility and cooperate by "having meaningful involvement" Section 60 B (1) in discussions between the adults and deal with their cause of objection, be it their paranoia or delusion, stress or spitefulness, or whatever issue to seek mediation or counselling and not to deprive the child of their grandparents.

While individual situations are different, Judges are different too in their interpretation and application of the law.

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
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