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VIC Drugs and Child Visitation - Grandparents Rights?

Discussion in 'Family Law Forum' started by Leannesmith, 25 March 2015.

  1. Leannesmith

    Leannesmith Member

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    Good Afternoon
    I have a 27yo son who for the past 6 or so years has had a high addiction to drugs. At present, he is in day 9 of a 10 day detox with The Ice Meltdown Project (TIMP). She comes from Drouin and has had amazing success with getting people off the drug. She was featured two weeks ago in a story on A Current Affair. When my son finishes his detox tomorrow, They'll be arranging a rehab facility for him to be admitted. He will most probably be there for many months.

    He has two children. A daughter aged 3 and a son aged 14 months. His now ex-fiancé, left on Christmas Day. He has a house which he has put on the market. He wants to be well away from that area. When he does sell, his ex is demanding a certain amount of money up front which relates to a loan her parents gave them when his mortgage fell into serious arrears. She then sold her car to repay her parents. Fair enough. However, she is also holding the kids to ransom saying he won't see his kids until he pays her the money.

    But she is now saying that she has more claims on his house. But, she has been claiming the single mothers pension ever since their first child was born, but continued to have all her mail sent to her parents house, so she is now saying that she never lived in my sons house, something that we could easily dispute. We don't want to go to those extents. All we are concerned about is my sons right to visitation with his kids while he is in the rehab facility. I have fears that she will refuse to take them down to see him. But my husband and I are more than willing to pick the children up and take them to see their Dad.

    When we asked his ex not to call for the duration (10 days) of the detox - use of a phone was banned under direction of TIMP - she went feral at us both, calling us every name in the book and has now pretty much banned us from seeing the kids too.

    I believe we, as grandparents, have rights with our grandkids too.

    Could you please let me know where we stand with regards to grandparents rights? We are coming off a bankruptcy (due to an unscrupulous builder we were working with) so don't have the funds to fight this, but her parents have a lot of money, and she is throwing that in our faces. It's like she doesn't want him to get better. I think she loves the drama of it all, and the attention paid to her when he is high, like someone with Munchhausens disease (sorry, spelling is probably wrong)

    We are extremely proud of our son for finally asking for help. But not seeing his kids could totally derail everything.

    Thanking you for your time.
     
  2. AllForHer

    AllForHer Well-Known Member

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    I'm sorry that you and your son are going through this. It's no doubt a difficult situation made worse by an uncooperative other parent, but good on him for taking action to address the challenges he faces with regard to drug use.

    Under the Family Law Act 1975, children have a legal right to know, spend time and communicate with each of their parents and other people relevant to their care (including grandparents) on a regular basis, insofar as their best interests can be met. Thus, it is not quite right that parents or grandparents have a right to be in their child's life, but it's the child's rights the court focuses on upholding. By suspending contact between the children and their father, the mother is violating the rights of her children. This isn't a criminal matter, of course, it's a family matter, but I find that explaining it this way is often helpful to making sense of how the law works.

    If it were the court that had to make orders in relation to this matter, it would follow the pathway set out in the Family Law Act 1975, which holds that any orders made must be in the best interests of the children.

    It decides what's in the best interests of the children based on Section 60CC of the Act. The primary considerations are a) the benefit to the child of having a relationship with each of their parents; and b) the need to protect the child from harm caused by family violence, neglect or abuse. Where there is found to be a benefit to the child of having a relationship with each parent, but also that there is a risk of harm, the court will make orders that protect the child from harm first, and maintain the child's relationship with the parent second.

    Beyond the primary considerations, there is also a series of secondary considerations, which includes things like how involved each parent has been in the child's life, what the child's wishes are, whether each parent can support the child's relationship with the other, and so on.

    Given the drug matters, it's probably the primary considerations that will be of greater importance to you. If the father remains committed to the children, then there is almost always benefit to the children of having a relationship with him, and 'protecting the children from harm' very, VERY rarely constitutes exiling the father from the kids' lives (which is what many parents tend to mistakenly believe!).

    Instead, the court might order supervised visits at a contact centre, or adherence to a drug test every month or two. The court will go to great lengths to protect the child's right to have a relationship with each parent, and thus, will ordinarily make proactive orders that address the risks of harm, rather than reactive orders that simply allow the problem to continue.

    I provide the above information so that you know roughly what you could expect if the court were to make orders. However, only about 5% of parenting cases even make it to final hearing, with the very large majority settling by consent beforehand. Long before court proceedings are even invoked, the parties must first attempt to reach an agreement about care arrangements for the kids under section 60(i) of the Family Law Act.

    A family dispute resolution conference is ordinarily the forum for 'attempting to reach an agreement'. It's mediated by a third party and in most circumstances, particularly if Legal Aid has organise the conference, both parties will be support by solicitors. It's a benefit if both parties can be represented - they will ordinarily provide guidance on what the law would do.

    For example, if neither party disputes the presumption of equal shared parental responsibility (which is each parent's role in selecting education, health care, etc. for the children), then the court would consider whether 50/50 care arrangements are suitable, and as such, you should do the same in family dispute resolution. If 50/50 arrangements are not deemed suitable, the court would consider substantial and significant time, which is a mix of weekends, weekdays, holidays and special occasions - and again, you should do the same.

    Family dispute resolution gives the parties an opportunity to negotiate an agreement that can be turned into a parenting plan, or consent orders. If an agreement is not wholly reached, the mediator will issue a section 60i certificate, which would enable the matter to progress to court.

    While there is no parenting plan or orders in place, the mother can withhold the children's time with the father only because there is nothing stopping her from doing so, so I suggest organising a family dispute resolution conference through Legal Aid as soon as possible to get some arrangements in place that ensure the kids best interests - which is no doubt to have a relationship with their dad - are upheld.

    I hope this helps.
     

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