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Not allowed to see Grandson

My daughter said that we could take my grandson who is 8 on holiday with us and after arrangements were made she changed her mind.

My partner and I live in Melbourne.  My daughter lives in N.S.W. now and we  were invited to go there for Christmas.  My daughter said that we could take my grandson who is 8 on holiday with us.  We made plans and booked the accommodation and invited my son and daughter in law and other grandson to join us for a few days.  They booked their flights.  Then out of the blue my daughter  sends a text message saying that she has changed her mind and that she won't allow my grandson to come with us.  My daughter is a single Mum but she was seeing a very nice guy who we called this morning and he told us that he is not seeing her any more.  

I have never had a very good relationship with my daughter but I have always given her a roof over her head when she needed it including coming back to Australia with a baby that she wasn't too sure who the father was.

I decided to not accept her invitation for Xmas as I know there would be a row about not letting my grandson come on holidays with us. My daughter used to ring me every second day and talk for hours and I could talk to my grandson.

I think that when she falls out with a man she takes it out on me and stops me seeing my grandson.

My daughter's father died when she was 6 and I remarried into a violent relationship.  She was also violent towards me. I divorced and have been in a happy relationship for 14 years.  Do I have any rights to see my grandson? I'm unemployed so don't have a lot of money.  
Unfortunately I have to say the answer is not without a lot of heartache.

The Family Law Act is clear in that it gives children the right to be involved in the lives of Grandparents and other family members. It was a concession a number of the reform groups worked hard to get into the 2006 amendments.

Section 60C  (2)
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and


What is not so easy is the operation of that area of the law in practice as we are seeing in a number of judgements that where the mother is against contact then the contacts are either significantly reduced or not at all. (See COTA posts and go to the Community area of the site and look at the Family Law Reform Association document on Grandparents.)
  
I would suggest immediately try and get a professional mediator to assist you with a phone call to the mother. You could contact the local FRC (Family Relationship Centre) or their support line. You could suggest to the mother it would give her a break and some time to do some things for herself so "is there a problem?" Does the mother have a reasonable reason for cancelling arrangements and of course it sounds like a great short holiday for the eight year old.

If you cannot resolve matters through reasonable and sensible dialogue you will need to formally go through a mediation process to get a form 60I and then file in the Federal Magistrates Court. You can do all of that yourself and it is not overly expensive. FRC costs will be negligible and filing costs are not expensive. You can represent yourself and a reasonable approach should get some sort of result. That process will take between 3 - 9 months.

Unfortunately I cannot suggest any real short term solution here. Courts are closed for a festive holiday unless matters are urgent. You could always suggest it would be a great Christmas holiday, a time for the mother to have some time out and a one time opportunity for the boy, whom I am sure will be spoiled by his Grandmother and friends … There would be many kids who would love to have a thoughtful Grandparent like you.

Executive Secretary - Shared Parenting Council of Australia
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If only all grandparents were like you.

Good luck.  It seems your daughter eventually comes around which I hope she will also this time.  however it may not be in time for Christmas, sorry to say.
Your Grandchild needs you be kind to yourself and I hope your Christmas wish is granted.
I came across a 2003 paper for the Family Law Reform Association written by a good colleague of mine Andrew Corish. I publish it in full for your interest. The cases quoted are somewhat older than I would have liked to use and the changes in 2006 do have an impact, but show the interesting interpretations placed by judicial officers.
Honorary solicitor for the FLRA, Andrew Corish said
Most of the information in the article remains current and I have provided updating comments at the end.

Grandparents do have rights under Family Law to maintain a relationship with their grandchildren.

The position and importance of grandparents were strengthened by the 1995 amendments to the Family Law Act. The amendments inserted new objectives at the beginning of the children's section, in Section 60B, including that:
children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development .

Grandparents were for the first time specifically mentioned in Section 65C as persons capable of making application for parenting orders under the Family Law Act. They always were able to do so, but the amendments gave grandparents special recognition and status.

The way the Family Court approaches grandparents' applications is illustrated by two cases.
In Stevens and Lee (1991) FLC 92-201 the paternal grandmother applied to have contact with her five-year old grandson. The father of the child had died as a result of an act of arson when the child was two. There was great hostility between the paternal grandmother and the mother and the grandmother had received little contact with her grandchild for some years. The judge, Justice Kay, said as follows:
From my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater the exposure the child can have to his biological links with his paternal grandparents, the better for the child, short and long-term. We live in troubled economic times and by way of example, in 20 years' time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.
However, in view of the ongoing conflict, he was not prepared to order ongoing contact for the time being, except by way of letters, Christmas and birthday gifts, provision of photographs, and school reports.

Shortly afterwards, another decision was handed down in the matter of Bright (1995), FLC 92-570. This was a decision of Justice Trevyaud. It was also an application by paternal grandparents for contact with their grandchild who was two and a half. They asked for one weekend per month and that the parents share the driving of some 400 kilometres.

It is not clear, but presumably their own son, as well as the mother, opposed the application. The parents said the child would fret if away from her mother and the child should not be embroiled in a dispute between parents. The judge said he had no hesitation in awarding the grandparents contact of one weekend per month, on the basis that they do the travelling. The judge referred to the recently decided case of Stevens and said:
His Honour was at pains there (in the Stevens case) 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.

The judge noted over the past few months that the child had developed a close bond with the grandparents and said it seemed not just desirable but absolutely essential that this relationship continued. The judge was not impressed by the parents' arguments that the child would fret away from her mother, and commented that some short-term adjustment was necessary for the overwhelmingly greater long-term benefit. The judge was particularly unimpressed by the argument of the parents that the child should not be embroiled in an argument between parents. He said:
If in fact the parents and the grandparents have fallen out, then so be it. But to seek to embroil a little girl of two and a half in a dispute between adults seems to me to be outrageous.

The parents could not both raise the dispute and then seek to rely upon it, in His Honour's opinion.

Both these cases were just before the new Family Law amendments came in (2006). Possibly Justice Kay may have been more supportive of the grandmother if the amendments had been in place.

So grandparents can and should do something about it if they are being deliberately alienated from their grandchildren. The cases indicate that the less hostility there is the better. Grandparents get much less support if they are causing disruption and disharmony to their grandchildren's lives, however justified their anger may be. Generally grandparents are expected to see their grandchildren at the same time as their own chid has contact. However, if there are special circumstances, or if their child won't or cant seek contact, or if their own child is the problem, then grandparents can bring action. Probably the grandparents need to do the travelling and incur the expense and should try and fit in their contact with the parents' and certainly the child's convenience as much as possible.

Needless to say, court proceedings are the very last resort. They are very undesirable.

All efforts at negotiation and conciliation should be tried first. Mediation organisations such as Unifam, Catholiccare, Relationships Australia and private mediators can be of great benefit. You can go and see them initially and discuss the situation with them and get support and suggestions. The mediators can then take the matter forward by contacting the parent and inviting him or her to a meeting, to discuss problems and resolutions. There is some expense involved in mediation, but it is quite reasonable. You can no longer go to counselling at the Family Court, unless proceedings are issued, but thereafter the counsellors can be of great benefit.

If proceedings are necessary, it is always good to get advice from a lawyer and pay for a lawyer to represent you, if you can afford it. Most grandparents will not be in a position to pay large sums for legal representation, nor should they do so. Grandparents should consider bringing the proceedings on their own, perhaps after seeing a lawyer and getting a lawyer to draw their initial documents.

The proceedings can be brought in the Family Court, the Federal Magistrates Court or in Local courts. The Federal Magistrates Court and Local Courts have some advantages, in that you get your material on quicker and get a quicker decision, and a large percentage of persons in those courts are unrepresented.
The documents should emphasise the positive things you can bring to your grandchildren and criticism of the parents kept to a minimum, unless their poor parenting or unreasonable actions towards you are directly in issue and relevant to the case.

As in the Stevens case, the grandparents' contact in a difficult situation may initially be limited to telephone, letters and gifts. However that can still be of great benefit and keeps the door open for greater contact as the child grows older.
Once orders are made, they are binding and enforceable, and can be enforced by an application to the Court. Needless to say, this is also difficult and thankless work to bring an enforcement application, but can be done and can be effective.

The Family Court has an excellent website ( www.familycourt.gov.au ) and conducts regular information sessions. The Federal Magistrates' Court also has an excellent website ( www.fms.gov.au ) and has numerous helpful resources. However there is a paucity of good material about how to help yourself in the courts, which hopefully will be rectified soon.

Updating Comments 2008:
The further changes to the Family Law Act in 2006 confirmed and emphasized the importance of the relationship of grandparents and grandchildren. Grandparents are now specifically mentioned in sections 60B(b), 63C(2A) and S64B(2) of the Act. More grandparents are making applications to the courts successfully. It is important to note that since July 2007 it is compulsory to attempt to reach agreement by mediation prior to issuing proceedings and obtain a certificate that you have tried prior to issuing proceedings. Such certificates can be obtained from Family Relationships Centres and from other mediation organizations. Grandparents will usually be successful in obtaining orders to have some communication and time with their grandchildren.

However, as a general rule, grandparents should try to support and supplement parents, rather than replace them, and orders are often of the nature of one day or one weekend a month and/or for a weeks holiday a year. Grandparents should be careful they are not seen as causing more conflict and problems than is necessary.

Andrew Corish
25th March, 2008

Andrew Corish Accredited Family Law Specialist Staunton & Thompson Solicitors Manly and North Sydney Ph: 9977 5000 Email:

Executive Secretary - Shared Parenting Council of Australia
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I hope this person is right as I am to start 3 cases to see 3 grandchildren.
They have different mothers, but my son is the father of all.
Any help appreciated

Sorry, I'm just the messenger

Andrew Corish Solicitor is correct and I agree with Secretary SPCA.
However, the advice being given today to grandparents is not to go to court.
Reasons, because it has been the experience of hundreds of grandparents who have that the law is (being abused) not being applied as intended by the legislators of the Family Law Act 1975 amended 2006.  
Grandparents are being treated like fathers in the courts.  This has to do with Emily's List which I'm sure you have heard about who support the agenda of young mothers to the detriment of everyone else including the children.  You can Google it.
The Family Court of Australia has no jurisdiction to hear your case.  It only has jurisdiction concerning cases involving divorce.
You need to go to the Children's Court, a State Court, administering Federal Law which does have jurisdiction to grant parenting orders to you to see your grandchildren.
Western Australia is the only state on the land mass known as Australia operating the Family Law Act according to the constitution.  This has been confirmed by the Attorney General of Western Australia.
The courts will most likely argue with you about this, but don't be fooled.  Public Servants will tell you anything.  
Whatever you decide to do, I wish you luck.

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
Mediation is being refused, phone calls hung up on and threats of police if I attend house, so it looks like court to me.
Brokenhearted, the Family Law Act makes it very clear that you are able to apply for a parenting order in realtion to any of your grandchildren. However, first you must go through the hoops and that is attempt a medaition with your daughter on the issue. If this fails, or if one or both of you do not make a 'genuine effort ' to reslove the dispute, then the mediator will issue you with what is called a s.60I certifcate, which is required before your application can be filed at the Court. Any Order the Court makes must be in the best interests of the children. You should inquire as to whether you qualify for legal aid to fund all or part of any application you might consider bringing.

Sorry, I'm just the messenger

Brokenhearted, your grandson has rights to see you, and the Family Law Act is very clear about this.  However, it is a difficult road to take and many grandparents are finding that the law is not being applied as intended by the legislators of the Family Law Act 1975 amended 2006.  However, don't let that deter you if it is your will to continue your relationship with your grandson as you have expressed.

You are unlikely to get Legal Aid as you will most likely be told your case has no merit or some other fabricated excuse and nonsense public servants working for legal aid will tell you.  They will most likely fund the young mother against you.  This has a lot to do with Emily's list which is about the destructive insurgent power of feminism discharging its anti family ideology, discriminating against grandparents, and fathers, and the rights of the child.

As in my post above, if the Family Court of Australia deals with defacto relationships it is ultra vires.  Public Servants working at the court and others will most likely tell you differently but they are wrong.  It's what the Family Court doesn't want you to know.

State courts exercising federal jurisdiction is the court where grandparents may seek parenting orders, or the Children's Court where it will cost you nothing.
I wish you well.

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
A short explanation is required for those members who may not be familiar with the term "Ultra Vires". I would suggest Calista that you also elaborate on why you suggest the Children's Court would deal with such issues, but certainly the Federal Magistrates Court would be a very good place to start with after any mediation.

I also bring to attention that a significant number of amendments have been made that do support jurisdiction of the Family and Federal Magistrates Courts to deal with De Facto matters. In the Family Court refer to:

4AA De facto relationships
Division 2Jurisdiction in de facto financial causes
Subdivision DInterpretationhow this Act applies to certain children
Part VIIIABFinancial matters relating to de facto relationships
Application of Division 2
90UB Financial agreements before de facto relationship
90UC Financial agreements during de facto relationship
90UD Financial agreements after breakdown of a de facto relationship
90UE Agreements made in non-referring States that become Part VIIIAB financial agreements
Part VIIIBSuperannuation interests
90MHA Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship
There are numerous  other components that would lead me to suggest that there is jurisdiction.

"Ultra Vires"

Ultra Vires was originally used in Corporations Law and relates to company decisions nullified as made outside their Objects and or Memorandum of Incorporation. Superior courts of law such as the Supreme Courts have inherited the common law power to supervise the exercise of power by administrative authorities, tribunals and other inferior courts.

In the Federal Court the supervisory powers come under the Administrative Decisions (Judicial review) Act 1977 and the judiciary Act 1903 which correspond with common law powers of review that state courts have. These include a power to declare that delegated legislation my be Ultra Vires or that the legislation is beyond power and therefore invalid.

Usually Ultra Vires might be declared if there has been non compliance with procedural requirements or uncertainty or unreasonableness of the regulation. It will require a Judicial Review to determine if such exists.

Executive Secretary - Shared Parenting Council of Australia
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Defacto Relationships Unconstitutional

Can anyone confirm whether this is incorrect as it is going into a High Court Application?

Now if you read the following below statements from our Hansard Constitutional arguments you will be able to see for yourself of what the framers of our constitution had clearly intended for defacto relationships matters.

1. The framers of the Constitution made clear;
Hansard 22-9-1897
Mr. SYMON (South Australia)[3.51]: Is it worth while to deal with the matter in that way? If you give the federal parliament power in relation to marriage generally and divorce generally, then anything that concerns parental rights and the custody and guardianship of infants is connected with either one or the other. It seems to me that if you intrust the federal authority with the power of dealing with marriage and divorce, which involves everything relating to the highest earthly ties-that of marriage-it ought, consequent on that, also to regulate the custody of infants. It does not involve what the hon. member, Mr. Carruthers, seems to think is in the minds of many who see some objection to this-that it might empower the federal authority to interfere with domestic relations in some mysterious manner so as to reduce children to a position of slavery.

2. Again; It does not involve to interfere with domestic relations
If anything, we find that children have basically turned into some property of the Commonwealth, by making non-custodian parents to have a Debt to the Commonwealth.

3. As for; It does not involve to interfere with domestic relations, the Family Court of Australia does generally nothing but that! Even to the extent to rule what kind of, religion a child can follow or not, albeit by Section 118 of the Constitution stating;

4. For example, the Family Court of Australia cannot exercise non-existing constitutional powers but must act within the limited constitutional powers provided.
Hansard 22-9-1897

5. Mr. SYMON (South Australia)[3.51]:
It does not involve what the hon. member, Mr. Carruthers, seems to think is in the minds of many who see some objection to this-that it might empower the federal authority to interfere with domestic relations in some mysterious manner so as to reduce children to a position of slavery.

6. As such, irrespective what legislation Federal parliament may enact, if it deals with domestic relations it is ULTRA VIRES!

7. This will also extensively deal with this matter of PARENS PATRIAE!
In my view, welfare matters are not within the (constitutional) jurisdiction of the Family Court of Australia. And despite the revised Family Law Act 1975, the constitution deals with Parental rights and not with Parental obligations albeit the framers did intend that this was provided within the constitutional powers. It is however, an absurdity to try to railroad parental rights, where that was a core issue by the framers as to deal with access and custody matters, to prevent one of the parents to be excluded wrongfully!

8. The Family Court of Australia (regardless of any ULTRA VIRES legal provision) has no position to be PARENS PATRIAE or similar to it.
The framers intended to have custody and guardianship strictly limited to matrimonial disputes of divorce, or where one of the parents walked out of the marriage (deserted parent).

9. The Family Court of Australia has no constitutional powers to enforce any Commonwealth law either! This, as the framers made clear, that Commonwealth law could only be enforced in the States by State Courts, invested with federal jurisdiction, and JURY NULLIFICATION could be applied if a State held the Commonwealth Law to be tyrannic in nature. ,

10. I do however have the position that in relation to children of a marriage the Family Court of Australia has legal jurisdiction to make orders for the release of the children and in fact also for the release of the parents as to enforce orders, provided it operates as a State Court enforcing Federal law.

11. Perhaps, you just might as well sack the lawyers who dont understand the basics of constitutional law and ensure that lawyers who are to litigate at least have a proper training in constitutional law and how constitutional provisions and limitations apply!

12. In the case of
LAMB and LAMB (No. 1) (1977) FLC 90225, at p 76,183 Asche S.J. , referred to in Harris and Harris (1977) FLC 90-276, at p 76,476
No prerogative Chancery jurisdiction, -
I am certainly not convinced that there is any inherent or residual power in this Court which can operate outside the confines of the Family Court. This Court is a statutory Court and has not, by reason of its statutory birth, inherited those powers which stemmed from the Courts of Equity exercising the Sovereigns power of parens patriae in wardship proceedings and vested by lawful succession in the Supreme Courts of the States.

13. In my view, the Full Court of the Family Court of Australia has gone berserk in the case to even argue that EXTERNAL POWERS were to provide some kind of legal jurisdiction.

14. If anything, I view this in just a way that it show's the incompetence of the judges concerned as external powers do no more but give the Commonwealth constitutional powers to make treaties with other nations in regard of matter in which the Commonwealth has constitutional powers, and no more!

15. Therefore, if the Commonwealth lacks constitutional powers lets say education, then it cannot purport to obtain constitutional powers by making some treaty with another nation about Education!

16. It seems to me to be very obvious that the judges neither really knew what the framers intended with subsection 51(xxii) of the Commonwealth of Australia Constitution Act! ,

17. Hansard 25-3-1897
Mr. WISE: I do not think that many real conflicts will arise over the Money Bills. The constitutional conflicts to-day take place far more over social questions than they do over Money Bills, and surely it is a little inconsistent to say [start page 108] that your States Assembly may amend or defeat a Bill that may strike at the very root of any social question, as, for instance, parents and the custody of their children

18. Hansard 29-3-1897
Sir PHILIP FYSH:
Think of what our forefathers have done in building up this great empire. We are the sons of men whose deeds have made the empire. How they fought together, and bled together, as Englishmen, as Scotchmen, and as Irishmen; and suffered in order that they might hand down to us, their children, the blessings of civil and religious liberty! And I ask what are we going to do for the generation which is to follow us?

19. Hansard 15-4-1897
Mr. CARRUTHERS:
I am not prepared to hand over the control of our waters to a minority of the people who will have a majority of votes in the Senate; people who have no concern with our waters; I understand the Convention deals with national subjects, and if we limit it to that, I will not fear this interference; but, in dealing with such questions as parental control and the custody of children, you are dealing with great national rights-the rights of human beings., Can there be any question, any more vital question, than parental control and the guardianship of children? These are handed over by this proposal, and you are going to make it a question of the States concerned, irrespective of people, to be the ruling power in this matter. Mistakes have been made, and we must retrace our steps and not attempt such a wide scheme on these matters, which can be well regulated by the people. My hon. friend showed clearly that a true Federation Will leave local con- [start page 658] cerns to be governed by the local Parliaments. That being so, there is no need for having this question in the Federal Parliament. My vote will be in direct antagonism to the views I formerly expressed, taken at the first blush, but it is consistent with what I then said, that I would seek to have imprinted on this Constitution the right of the people to rule as the chief factor of the Federation, and the people most affected by it.

20. Hansard 19-4-1897
Mr. CARRUTHERS: ,
Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution. When once that Constitution is framed we cannot get behind it. ,

21. Hansard 22-9-1897
The Hon. E. BARTON: If the subclause can be amended in the direction which the hon. and learned member suggests, my objection will have disappeared, and there will be a reasonable consistency in the law. I think the difficulty might be overcome by inserting before the words "parental rights" the word "also," and at the end of the sub-clause the words "in relation thereto." ,
,
22. Mr. SYMON (South Australia)[3.51]: Is it worth while to deal with the matter in that way? If you give the federal parliament power in relation to marriage generally and divorce generally, then anything that concerns parental rights and the custody and guardianship of infants is connected with either one or the other. It seems to me that if you intrust the federal authority with the power of dealing with marriage and divorce, which involves everything relating to the highest earthly ties-that of marriage-it ought, consequent on that, also to regulate the custody of infants. It does not involve what the hon. member, Mr. Carruthers, seems to think is in the minds of many who see some objection to this-that it might empower the federal authority to interfere with domestic relations in some mysterious manner so as to reduce children to a position of slavery. This is a control that seems to me to be consequent upon marriage, and which might come into operation, perhaps, in relation to all matters of divorce; but it is not confined to matters of divorce, and might depend simply on marriage when the question of divorce does not arise. It will, perhaps, be better to leave the sub-clause as it is and consider the matter further later on. ,

23. Again;
It does not involve what the hon. member, Mr. Carruthers, seems to think is in the minds of many who see some objection to this-that it might empower the federal authority to interfere with domestic relations in some mysterious manner so as to reduce children to a position of slavery.

24. Yet, when reading parts of the case set out below, it is if is the Family Court can precisely do so contrary to the intentions of the framers.

25. The issue is that welfare matters fall within State jurisdiction, and if a child is being abused, it is not for the Family Court of Australia to deal with that, but to leave it up to the State authorities to deal with it. The Family Court of Australia simply would have to seek assistance of State Authorities in that regard.

26. It must be clear that to interfere with domestic relations was never intended to be part of the Commonwealth constitutional powers, and doesnt exist!
Parens Patriae or similarly neither exist with the Commonwealth and therefore neither with the Family Court of Australia! ,

27. Neither can the minister of Immigration obtain Parens Patriae powers by the immigration Act, this as the framers made clear that LIBERTY and PROPERTY was outside the constitutional powers of the Commonwealth.

28. What was to occur is that if any person is to be incarcerated under any Commonwealth Law then this must occur using State prison facilities. Then the Supreme Court of the relevant State can exercise Parens Patriae! The Family Court of Australia fails to operate within the appropriate legal required procedure, according to State law, and seeks to enforce Commonwealth law without having any constitutional powers to do so.

29. Only a State Family Court operating under Commonwealth Law can enforce Commonwealth law! Alternatively, a State Court exercising Federal Jurisdiction and so exercising powers under the Family Law Act 1975 can enforce the Family law Act 1975 provisions!

30. B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451 (19 June 2003)

31. "Welfare" is not a matter included in the referral of powers by the S.A. statute. This means that the jurisdiction given to the Family Court under s 69H(1) and by s 69ZE (setting aside for the moment s 69ZH) does not include (for South Australia) any reference to the "welfare" of children.",

32.The error made here is that on the one hand certain persons are held in Detention Centres in a State, but governed by Commonwealth laws, in the purported Commonwealth Detention Centres, albeit unconstitutionally, and on the other hand State law is considered. If Woomera was on commonwealth land then State laws do not apply. However, as the Commonwealth has no constitutional powers to enforce its own laws, it neither can hold any person in Administrative or any other form of detention!

33. B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451 (19 June 2003)
Looking first to the parens patriae jurisdiction, her Honour considered a number of English cases dealing with the limitation upon the use of the wardship jurisdiction in matters governed by statute: In re B (Infants) 1962 1Ch. 201 (C.A.); In re Arif, In re Singh 1968 1 Ch. 643 per Lord Denning at 662; Re X (a minor) (1975) 1 All E R Fam Div 697 at 706 per Sir John Pennycuick. Her Honour rejected at [107] the submission for the father that the English cases could be distinguished because the parens patriae jurisdiction in England was one founded in common law which could therefore be overridden by statute (in contrast to the jurisdiction of the Family Court which is founded in statute). ,

34. She said at [108] that s.67ZC does not grant a greater jurisdiction than parens patriae and that [109]: ,
"…neither the parens patriae jurisdiction nor s 67ZC give power to the Family Court "to make any order to avert a risk to a child's welfare". The jurisdiction is not unfettered, unlimited or unrestricted. It can be overridden by statute."
69. In support of this view, her Honour cited: In re Arif, In re Singh (supra) Russell L.J. at 662; Re L.S.H.; Ex Parte R.T.F. and another (1987), HYPERLINK "LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91 (3 November 1987)" 164 CLR.91 per Dawson J at 120; Abebe and The Commonwealth of Australia (1999), HYPERLINK "
ERROR: A link was posted here (url) but it appears to be a broken link.
http://www.austlii.edu.au/au/cases/cth/high_ct/197clr510.html" 197 CLR 510; Marion's case (supra) P v P (supra); GPAO (supra) at 608 per Gaudron J. ,
As indicated already, the Family Court of Australia not only is operating unconstitutionally but is severely limited in any power (for the Commonwealth)!
B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA ,

35. (19 June 2003)
After discussing the parens patriae jurisdiction His Honour continued [at 263]: ,
"263. It is unlikely that against the background of the long history of the exercise of the parens patriae jurisdiction over children essentially based on residence that the Commonwealth would have set out to legislate for the guardianship and custody of ex-nuptial children no matter where they might be resident at any time during infancy. (No question arises in this case as to the operation of the principle in those cases which might attract the diversity jurisdiction).

36. Constitutional powers, so legal jurisdiction by the Federal Courts, is severely limited. And, the purported references of powers by all States in regard of children is unconstitutional.

37. B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451 (19 June 2003)

38. The Act as it now appears refers to "parental responsibility" for children, rather than "guardianship, custody and access" as rights of parents in relation to their children. Section 61B of the Act relevantly provides: ,
"Parental responsibility… means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". ,
And

39. However we reject the concept that the Court's powers to protect children are confined to orders directed at parents or persons in loco parentis. The Solicitor General suggested that the Court could not exercise its powers to grant an injunction against persons such as the landlord of the premises where the child may be living or any other third person, regardless of the effect that their behaviour might be having upon the children's welfare. We find this to be an unsatisfactory proposition, because it suggests that the Court has no power to protect a child from a potential abuser, unless that person is in loco parentis in respect of the child. We can find nothing in the Act and particularly the language of s.68B that would support such a restrictive interpretation. It is true that Gaudron J left this question open in GPAO at [142] upon the basis that it was unnecessary to determine it in that case. We are unaware of any authority that would operate to so confine the jurisdiction. ,

40. We think that to adopt such an interpretation would seriously weaken the Court's capacity to protect children from potential abusers who may be, and often are, persons within a family who are not in loco parentis to the child. For example, children are frequently abused by persons other than their parents from within and outside the family circle. It is not uncommon and often essential for the Court to make protective orders in such cases. ,
And

41. Their Honours pointed out that the Attorney General, in the second reading speech introducing the Family Law Amendment Bill 1983, said that the intention of the Bill was to expand, HYPERLINK "FAMILY LAW ACT 1975" the Act's jurisdiction concerning children to permit proceedings concerning the welfare of a child. This reflected the Government's decision to implement the Watson Committee recommendation, thereby investing courts exercising jurisdiction under, HYPERLINK "FAMILY LAW ACT 1975" the Act with a power similar to the wardship powers of the State Supreme Courts.
And

42. Their Honours continued at [256]: ,
"It seems clear that the 1983 amendments were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of the Court." ,
And

43. Their Honours continued at [257]: ,
What was achieved by the amendments of 1983 and was not rescinded by the change to, HYPERLINK "FAMILY LAW ACT 1975" the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction and we agree with McCall J in the present case that the fact that the Family Court may not have the power to make a child a ward of the Court does not prevent it exercising the general parens patriae power with respect to children." ,

44. Their Honours at [261] referred to an argument that was advanced before us in this case to the effect that the apparent width of the welfare jurisdiction would render state criminal laws unworkable. It was therefore put that this would indicate that the welfare jurisdiction of the Family Court was or should be limited. Their Honours rejected this argument. They said:

45. Ultimately, however, any limitation on the jurisdiction of the Family Court conferred or apparently conferred by the, HYPERLINK "FAMILY LAW ACT 1975" Family Law Act must be constitutional. The Act is limited in its operation by reference to the constitutional powers under which it is enacted: "marriage" (s.51 (xxi)) "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" (s.51 (xxii)) and, so far as the Northern Territory is concerned the territories power (s.122). In the present case the emphasis was naturally on the marriage power and, as well, the territories power. ,

46. In Fountain v Alexander Gibbs CJ said: ,
The power of the Parliament to make laws with respect to marriage does not extend to laws for the protection or welfare of the children of the marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship.'

47. Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance jurisdictions, though the scope of the jurisdiction will nevertheless be very wide. So long as an order of the Family Court is constitutional, there can be no limitation on the Court's powers emanating from the need to preserve the scope of state legislative powers. To hold otherwise would be, as counsel for the Commonwealth said, to take the law back beyond the Engineer's case.

48. It is clear enough that a question of sterilization of a child of a marriage arises out of a marriage relationship and that the sterilization of a child arises from the custody of guardianship of a child. Therefore, jurisdiction to authorize the sterilization is within the power of the Commonwealth, quite apart from the operation of, HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s122.html" Section 122 of the Constitution." (footnotes omitted) ,

And

49. McHugh J at [318] expressed the opinion that the Family Court does have a jurisdiction similar to the parens patriae jurisdiction and agreed in general with the views expressed by the majority.

50. Brennan J dissented both as to the extent of the jurisdiction and as to the power of a court to authorize the sterilization of a child.We consider this decision as important to the determination of the issues in this case. We refer in particular to Deane J's remarks above in this regard.

And

51. These cases make it clear that the Court's welfare jurisdiction is akin to the parens patriae jurisdiction and they also make it clear that this is a valid exercise of constitutional power depending on the subject matter of the order. Therefore, it is necessary for a court exercising such jurisdiction to satisfy itself that the subject matter of the order is connected with the appropriate heads of constitutional power.
And

52. It was said by the Solicitor General that the parents in this case retain their parental authority. In the present case we think that it is clear that the parents do not retain their full parental authority. Both are confined in immigration detention. The Solicitor General sought to distinguish the position of the Minister upon the basis that he was not a lawful guardian of the children. This may be so but as we understand it, what was being put was that the Minister had no responsibility for the welfare of the children. As we note subsequently the Minister has conceded in other proceedings that he does owe a duty of care to persons in detention. ,

53. Given his powers under the, HYPERLINK "MIGRATION ACT 1958" Migration Act, we find the Solicitor General's proposition extremely difficult to accept. After all, it is the Minister and not the parents who determines where the children will reside and with whom. He also determines what contact should take place between the children and their parents. He also decides whether and what form of education is offered to them and what sort of health care is available to them. All of these decisions are normally part of the responsibility of parents. We think that the reality must be that the limitations on the parental authority resulting from the detention and confinement of the parents and of the children must of necessity derogate from their parental authority. Further, the powers of the Minister and/or his Department over the placement and manner in which the children are detained constitute in our view a type of de facto parental authority and certainly affects their parenting. ,

54. We also note Deane J's comment that the jurisdiction can be invoked at the suit of the parents themselves "…to make binding orders for the protection of the child which were patently beyond the powers of the parents" ,

55. We consider that the present situation fits neatly into such a category.

And

56. The Solicitor General argued that the limitations of the marriage and divorce powers were such that the Court had no jurisdiction to protect children from the actions of persons who were not in loco parentis. This seems to us to involve an extremely limited view of the breadth of the constitutional provisions. As we have pointed out, if the Solicitor General is correct, this would seriously hamper the court from taking appropriate steps to protect children from abuse. It would mean for example, that the Court could take no steps to protect a child who is being abused by a grandparent or a sibling, or a person with whom one or other parent has formed a relationship to name but a few.

57. The nonsense in this all is that the Parliament cannot provide legal jurisdiction to the Courts where it is beyond constitutional powers! As such, it doesnt matter what the Parliament may enact, it remains ULTRA VIRES, if it is contrary to the intentions of the framers!

58. B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA (19 June 2003) THE EXTERNAL AFFAIRS POWER
We think, that the welfare jurisdiction of the Court also gains constitutional support from the external affairs power. If this is so then it extends to all children and not simply children of the marriage. This issue had not been determined prior to the matter coming before her Honour. ,

59. Having regard to the views that we have expressed it does not form an essential aspect of our decision. On the other hand, if we are wrong as to the extent of the marriage, divorce and incidental powers, it then becomes relevant to consider this issue. ,

60. On behalf of the children in this case, it was submitted that her Honour was wrong in finding that the United Nations Convention on the Rights of the Child ("UNCROC") is not a foundation for the welfare jurisdiction of the Court. She so held because, in her opinion UNCROC is a treaty "expressed in terms of aspiration", rather than, using the language of the Industrial Relations Case (1996), HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/187clr416.html" 187 CLR 416, "defined with sufficient specificity" to direct a general course to be taken by ratifying States Parties. ,

61. Again, EXTERNAL POWERS only cannot provide any kind of constitutional powers beyond what is already existing on the first place. EXTERNAL POWERS therefore is limited to be used within the ambit of existing constitutional powers, and any part in excess to it will be ULTRA VIRES!

62. Family Court of Australia
Judgments
Schorel and Elms [2000] FamCA 272
In discharging the wardship order, Hase J. was not making an order under the Family Law Act but was exercising the parens patriae jurisdiction of the Supreme Court of Victoria by way of the cross-vesting legislation;, see Director-General Department of Community Services Victoria v Hallinan (1992) 15 Fam LR 497 and Re Z (1996) 20 Fam LR 651., Thus, G ceased to be a ward of the Supreme Court of Victoria upon the making of the consent order by Hase J. on 23 May 19990. ,

63. This was obviously sheer nonsense, as the Cross Vesting Act was ULTRA VIRES, and no application was ever made to apply the Cross Vesting Act either. What we had was that the Family court of Australia judges simply were improperly seeking to justify the unconstitutional and invalid orders. After all, railroading the case was seemingly better for them then to admit a wrongful judgment and so a wrongful imprisonment!

There is more to this……………but couldn't fit it all in here.


First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
Calista said
Can anyone confirm whether this is incorrect as it is going into a High Court Application?
What are you wanting confirmed as correct?

I am not sure I follow what you are trying to achieve.

Looking at Hansard in 1897 is hardly relevant when not only has constitutional amendment been made subsequently but statutory amendment to Acts through legislative amendments that has had an enormous affect on numerous Acts as well common law precedent that has become entrenched in some situations.

The topic was about getting a child a holiday with a Grandparent and some contact going. How will a High Court application (For what exactly I am unclear) do for this poster?

In points 12-16 who is that making those statements? I am not an expert by any means on Constitutional Law and what I have discussed with those who are, seems to indicate to me, there is much detail missing in getting to any outcome. I think I have previously touched on this area of law on forums here where there is a view that the courts are not constitutionally framed. This is not any easy area of law to get involved with because you not only need to look at the Constitution BUT also the Interpretations Acts as well as precedent as well as technical amendments to many of the related Acts and instruments.

It is the sort of area you would need to engage a law professor who spends all of their time at University looking at these sorts of details. In my opinion the average Solicitor/Barrister in every day practice would not have sufficient time or research capability to even undertake this most complex work.

I would have thought an easier option for you would be to craft some real meaningful amendments that we can have raise with the Attorney General to insert into the Act to beef up contact issues for Grandparents.


Executive Secretary - Shared Parenting Council of Australia
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Brokenhearted
Please be rest assured that the Family Court or the Federal Magistrates Court is where you file your application.

In view of the earlier post challenging the Court's jurisdiction, the matter has been dealt with already by the High Court in B v MIMIA; High Court of Australia

The extent to which the Commonwealth in Part VII has relied on the referred marriage and matrimonial causes power and referred custody and access powers is set out in s.69ZF and ZE and it includes;

the maintenance of children;
the payment of expenses with respect to a child, and
parental responsibility

See S.69ZE (2) (a) (ii).

All the best
Regards

Last edit: by Secretary SPCA

The rest of it following para 63

De Facto Relationships

64. http://en.wikipedia.org/wiki/Section_51%28xxxvii%29_of_the_Australian_Constitution
The Australian Constitution confers legislative power to the Commonwealth over marriage (Section 51(xxi)) and matrimonial causes (Section 51xxii)). The Australian Commonwealth created the Family Court of Australia as a specialist court dealing with divorce, including custody of children. However, the custody of children born outside of a marriage was outside of the Commonwealths jurisdiction. As a result, these matters had to be litigated in non-specialist state courts.

65. Between 1986 and 1990 all states, except for Western Australia, referred the custody, maintenance, and access of ex-nuptial children to the Commonwealth. This referral excluded child welfare matters. Given that abuse of children is frequently a matter of contention in family law cases that reach litigation, this limitation is important in that it establishes a split system and creates bureaucratic hurdles. The referral also did not refer to property matters arising at the end of de facto relationships. As a result, maintenance orders are made in the Family Court and property settlements in state courts, although the matters may be inter-related. In 2003 Victoria, Queensland, and New South Wales referred financial settlements to the Commonwealth. However, the issue remains unresolved in relation to other states.

Western Australia has not referred powers, and has its own specialist court, the Family Court of Western Australia.

END QUOTE

66. Now it clearly states here that the all of the states except for Western Australia have referred the custody,maintenance and access of nuptial children to the Commonwealth but in order for any state to refer these powers to the Commonwealth a referendum had to be held in order for these changes to have been constitutionally made as it there is nothing in the subsections of Section 51 of COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT that allows the Commonwealth to make laws in regards to de facto but a referendum for a constitutional change to Section 51 to add an extra subsection to Section 51 that would allow the Commonwealth to make law in regards to de facto relationships would be the only way legally and constitutionally be permitted but this had never happened and there was no referendum in 1986 when the state of NSW transferred its state legislative powers to the Commonwealth.

QUOTE

67. (http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html)
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT Section 51 subsection (21)  marriage; (22)  divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;  

END QUOTE

68. And these subsections specifically explain's that the Commonwealth could only make laws in regards to marriage and divorce and matrimonial causes but no where in any of the Section 51 subsections and I repeat NO WHERE does it say anything about the Commonwealth being given the legislative power to make laws in regards to de facto or domestic relationships, parental rights, and the custody and guardianship of infants as the framers of our constitution specifically stated that domestic relationships must not be interfered with by the Commonwealth and therefore must be dealt with at a state level.

69. So if the Commonwealth doesn't have the legislative power to make laws in regards to domestic and defacto relationships then how can the states refer there state legislative powers in regards to domestic or defacto relationships back to the Commonwealth when Section 51 clearly doesn't give the Commonwealth the legislative powers to make any laws in regards to defacto relationships at all but only for marriage and divorce proceedings.

70. If the states were never given the power to refer de facto relationships back to the Commonwealth then anyone who was in a de facto relationship and has had an application before the Family Law Court then any evidence or documentation that had been heard in that application in the Family Law Court must be declared ULTRA VIRES as the Family Law Court never had jurisdiction over there matter to hear it in the first place but only a state court had the jurisdiction to hear and determine the application.

71. As you can see in my application I have attached a response to a section 78B from the WA Attorney General and it clearly states in his section 78B response letter to me that QUOTE: Unlike the other states and territories the Family Court of Western Australia is a state court established under the Family Law Court Act 1997(WA) and exercises both commonwealth and state legislation when determining Family Law Matters.

72. Now this letter from the Western Australian Attorney General clearly proves that they are the only state within the Commonwealth of Australia that is having both state legislation and commonwealth legislation within a state court in Western Australia and is the only state that is having the Family Law Court system set up the exact way that our framers of our constitution wanted for the people of Australia.

73. So I think there is enough there to prove that the framers of our constitution had never intended for de facto relationships to be heard in a federal court exercising federal jurisdiction but only people who were married would have there application of divorce and custody to be dealt with in a federal court excising federal jurisdiction eg: (The Family Law Court) and therefore my case should never had been referred to the Family Law Court at all in the first place and therefore if a de facto relationship application had been heard before the Family Law Court and later on the applicant realized that his matter was supposed to be before a state court then the current orders that the Family Law Court, had made against me must be declared Ultra Vires as there is no way that the Family Law Court can enforce orders against someone in which the court were never given the power's to make orders in the first place against a de facto relationship applicant.

74. Children's Court proceedings in care and protection cases are conducted under the Children's Court Act 1987 and in NSW the Childrens Courts sit in the Local Court and are presided over by the Local Court Magistrate or a Childrens Magistrate from Sydney and this falls in the category of state laws within a state court which is exactly what the framers of the constitution had intended for de facto relationships although its not exactly how the state of Western Australia has got theres set up but it is the closest alternative within the state of NSW.

75. The Children's Court of NSW is able to make a variety of orders with respect to the care and protection of a child or young person and these include:

1. Interim care orders;
2. Orders for supervision;
3. Orders allocating parental responsibility for a child or young person;
4. Orders prohibiting an act by a person with parental responsibility;
5. Contact orders;
6. Orders for the provision of support services; and
7. Orders to attend therapeutic or treatment program.

Also I would like to point out in COMMONWEALTH POWERS (FAMILY LAW–CHILDREN) ACT 1986 when the state of NSW had officially transferred its de facto relationship powers to the Commonwealth that Section 4 has stated the following: http://www.austlii.edu.au/au/legis/nsw/consol_act/cpla1986399/s4.html

Section 4 Termination of reference
(The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which the reference under this Act shall terminate. )

Now here in Section 4 it clearly states that that the Governor of NSW can terminate this Act at anytime that he or she wishes but Section 4 is absolutely impossible to terminate because if the powers in regards to de facto have been handed over to the Commonwealth and are no longer in the hands of the state of NSW then the only person who can terminate it is the Commonwealth Attorney General as it is in there hands now due to the state handing these powers over to them. But yet Section 4 clearly states that the Governor of NSW can terminate it which is absolutely impossible and the question for high court is that how is it possible for the NSW Governor to terminate something which they no longer have anymore.

In regards to Section 109 of the constitution it clearly states that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s109.html
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 109
Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

But in regards to de facto relationship laws of the states being compared to the Commonwealth laws Section 51 of the constitution never gave the Commonwealth the legislative powers at all to make laws in regards to de facto relationships so then it is absolutely impossible for de facto relationship law's to be compared between the state and commonwealth child custody laws.

And not only that but in order for section 109 to be used then you need both state laws and commonwealth laws in regards to that particular issue but currently right now the commonwealth has laws in regards to de facto relationship custody matters and there is currently no laws regarding state laws for de facto relationship custody matters so it is impossible for section 109 to be even applied to as there is nothing to compare it to for inconsistancys.

But the NSW children's court currently is the closest alternative for anyone who wishes to file an application for contact orders as it is within a state court which is the correct jurisdiction and the http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/s86.html Children and Young Persons Act 1998 Section 86 (a) & (b) is what a de facto relationship applicant can file under.


First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
Calista the link you provided to Wikapedia allows anyone at all to edit and update it. It is not regarded as authoritative and the arguments you put up need to have proper referencing.

As I have already said both the Family Court and Federal Magistrates Court as well as the Family Court in WA have Federal jurisdiction over (NOW) all types of family when it comes to contact, support and property matters pertaining to children. This means married, divorced, separated, living together, dating, one night stands, gay, lesbian, homosexual and transgender persons who are dealing with children issues in relation to separation, contact matters, property splitting and monetary support both CSA (After SSAT on a point of law) and spousal maintenance.

EVEN if you felt that constitutionally the Family Court and Federal Magistrates Courts were not constitutionally bound what will you achieve by going to a children's court that you wont get in a Federal Magistrates Court? Children's Courts have traditionally seen criminal cases, Agencies making application and children in trouble with police and authorities for petty crime. Are you suggesting that all family related matters should be sent there, where such matters have traditionally been dealt with by the Federal Magistrates or Family Courts?

What is the rational behind proving that the Federal Magistrates Court and Family Court are not constitutionally founded, does this mean Grandparents might get a better deal?

As I see it the Family Court and the Federal Magistrates courts have vested powers through the various legislative amendments to the acts that I previously listed since 1897

You never answered any of the questions I raised in my previous post but simply posted a pile of "stuff". I can just post the Family Law Act amendments since it began but that will do nothing for this discussion on how this Grandmother will get more time or sort out her wayward daughter who has withdrawn the holiday that was arranged for the grandparents and friends…

Are you sure you are not getting confused also with jurisdiction of Family Court to make orders in respect of children detained under the Migration Act. Referred by the previous poster bos  MIMIA v B [2004] HCA 20 (29 April 2004).

All members of the High Court concluded that the Family Court did not have jurisdiction to make orders in respect of children detained under the provisions of the Migration Act 1958 (Cth): Gleeson CJ with McHugh J; Gummow, Hayne Heydon JJ; Kirby J; Callinan J. Appeal allowed.

I have attached a judgement that may be of interest in referring to Constitutional matters and the Family Court powers.

Attachment


This was an appeal by the Secretary of the Tasmanian Department of Health and Human Services against an order that he be joined as a party to parenting proceedings under the Family Law Act 1975 without his consent and a consequential order giving him leave to apply to be removed as a party.

The Secretary asserted that a number of errors had been made by the trial judge which included:

     that there was no power in the Family Court to order his joinder as a party to proceedings in question

     that the trial judge erred when considering the asserted requirement for the Secretary to be willing to assume responsibility for the subject children, and to consent to being joined in the proceedings, and

     that the provisions of the Act on their true construction do not apply to a person such as the Secretary who exercises powers and duties in right of the State of Tasmania.

The primary question considered on appeal was whether the trial judge had the power to join the Secretary absent his consent.

This is also worth a read:

International Law and Constitutional interpretation


Executive Secretary - Shared Parenting Council of Australia
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bos said
Brokenhearted
Please be rest assured that the Family Court or the Federal Magistrates Court is where you file your application.
I think the Federal Magistrates court would be by far the best in this case.

My view is that a reasonable attempt at mediation should resolve the issues here and court is a last bastion in this case… The Mother is talking to her mother. I wonder what has transpired over the Christmas period and if contacts have in fact happened for the child with the Grandparents involved? Mother may have had a change of heart and the child would be looking for those extra Christmas presents I might imagine.


Executive Secretary - Shared Parenting Council of Australia
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I would hope that you and your daughter could settle this once she is over her recent break-up. I think I would wait a while before researching possible laws and legal possibilities.
I agree with Ronaldps

An application regarding the issue of "defacto" relationships (which include grandparents not divorced to the respondent, and the issue of "contact" ) is presently being prepared for the High Court.  All State Attorney Generals have been put on notice.

So I would definitely withhold taking any action for now.



The ultimate ignorance is the rejection of something you know nothing about and refuse to investigate. - Dr. Wayne Dyer

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi
Calista said
I agree with Ronaldps

An application regarding the issue of "defacto" relationships (which include grandparents not divorced to the respondent, and the issue of "contact" ) is presently being prepared for the High Court.  All State Attorney Generals have been put on notice.

So I would definitely withhold taking any action for now.
You have tried to hijack this thread by making several postings that are not relevant to the original post and are now politicizing it with irrelevant nonsense. The original poster obviously has similar problems that you had with your daughter and rather than offer sound advice you are posting material that is not relevant to the original question and attempting to confuse the original poster.

Defacto relationships have nothing to do with the original posters questions and will not impinge on any action in the Courts.

Contact with children and parents (and Grandparents) is determined by the Family Courts (FCoA or FMC) The marital status of the parents (or Grandparents) is not a factor the Courts take into account.

To the original poster Brokenharted, you asked "Do I have any rights to see my grandson?" the brief answer is NO which is the same for parents, however Children have a right to know a parent and the Family Law Act extends this to Grandparents.

You should first try some form of negotiation and if this is unsuccessful make an application to an FRC for mediation. If this is not successful then the matter will have to go to Court.

 Senior Site Moderator and Administrator
How can you make sweeping statements about other peoples lives whom you don't even know. The fact is, unbeknown to you, my daughter and I had a very close relationship, couldn't be better.

I am sorry you feel this way about the issues of defactos and the family court but its a hugh issue right now about to explode!

No state Attorney General is going to intervene except the WA Attorney General who is doing it right, and is involved in the High Court application.

We have informed Secretary SPCA of this and we hope he now understands.

Children have a right to have a relationship with both their parents and significant others.  But can you honestly say the child's rights are being upheld?

The ultimate ignorance is the rejection of something you know nothing about and refuse to investigate. - Dr. Wayne Dyer

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