NSW Change Orders in Family Law Court

[Juliw]

My granddaughter was placed in my care in August 2013 by DoCS (Human Services).

In May 2014, the Family Law Court (FLC) made final orders giving PR to the Department and residence with me. Since February 2014, the mother has left the abusive relationship she was in and relocated to be closer to her daughter. We have resumed a very close relationship over the past 7 months. She has consistently begged the Department to conduct urinalysis on her (as per court orders) but the Department has refused. She has very generous unsupervised access. The father has stopped all contact visits since October 2014.

The Department have given the mother extra time with her daughter outside of the court orders. The NGO handling this case are aware that the mother and granddaughter see each other on a daily basis now and don't have a problem with it. However, the Department are now saying that I am in breach of the orders by allowing this. They are also saying I am breaching orders by having access to my granddaughter's medical records! Yes, I know, that's crazy.

I worked for the Department and I know how manipulative they can be if they have a 'personal' hatred of a parent. We are applying to the FLC to have the orders changed. My granddaughter begs me daily to return to her mother and is severely traumatised by not being able to live with her.

Am I in breach of the orders by allowing extra time between mother and daughter? We are terrified that my granddaughter will be placed in foster care.

 

[AllForHer]

This is a really difficult and delicate situation, so I urge you to get legal advice.

Summarily, the court makes orders in the best interests of the child and the primary considerations about what's in the child's best interests is the benefit to the child of having a meaningful relationship with both parents. Of course, they are also obligated to protect the child from harm, but in most circumstances, where the child is found to have an attachment to the parent already, this is carried out by ordering supervised contact or similar.

If your orders state that the mother is to have no contact with the child, then yes, you would be in breach of orders, and the Department may see you to be in breach because you have made a decision about the child's care arrangements by letting the child spend time with the mother. Decisions about care arrangements are ordinarily allocated to whoever has parental responsibility.

You might find it beneficial to your case to request a family report be completed so that the child's relationship with the mother can be assessed properly and an expert opinion provided. Be prepared that if your case is successful, they might order supervised contact for a period - I assume the court ordered urinalysis tests because the mother may have had some difficulty with drug use, and it's wonderful that she has taken steps to reverse this behaviour, but in the greater scheme of things, seven months isn't an especially long time, so it would be prudent to expect the court to act with caution.

If you want to be safe regarding proceedings and contraventions, you could supervise the visits between the daughter and the mother until you have other orders. It's not ideal, but it's better to be safe than defending your actions in a court of law.

 

[Juliw]

Thanks for your advice. I know that 7 months doesn't seem like a long time but the Department's argument has always been about the mother's history from many years ago. My daughter's last urinalysis results before removal were clean. There have been no tests since then and those ones were only done because of malicious reports which were found to be untrue. The primary reason for removal was exposure to domestic violence (which didn't occur in front of the child). I appreciate the concept of the 'best interests of the child' (I teach children's rights to Postgrad students) but I would have to argue that there is no clear definition of this term and it is a very individual notion. Having said that, my granddaughter's best interests, or well-being, are not being considered nor are her views on this situation.

I will look into a family report being done and I think it is also time the Ombudsman investigated this case. Most of the extra time is already 'supervised' by myself. However, the Department has allowed the extra unsupervised time and 'unofficially' changed orders. It is clear they have no child protection concerns but there is certainly a lot of 'power' being thrown around.

It is a mess and there can be no good outcomes if my granddaughter's rights continue to be ignored. Thanks again. I think we are in a for a long battle before justice is done.

 

[AllForHer]

For legal purposes, section 60CC of the Family Law Act 1975 outlines what the court considers when deciding what's in the best interests of the child, but you are right in that it is still a subjective field of the law.

I'm not sure of the exact process, but the Department should have a process for settling disputes such as mediation. Perhaps you could speak to the person handling your case about this.

 

[Juliw]

Yes, I will be speaking to my lawyer about this. The Department have refused, for the past 8 months, to engage in any form of mediation. Sadly, I know how the child protection system operates in NSW and the power they wield is frightening. Thank you for all your advice.

 

[okanynameyouwishthen]

Are you in breach of order ? I believe so ( at least by SA's threshold). Will you be charged ? I very much doubt it.