NSW Family Court Order for Recovery of Child

[Alana]

I am wanting some advice regarding a family court issue. I am the maternal grandmother, in this case of my daughters 6 year old and 14 month old. We just had a recovery order go through the courts successfully and the next court date is 5th of Sept. The recovery order was issued for the 14 month old as the ex partner is the natural father to her, and when my daughter had taken her over there to visit, then refused to give her back or let her visit for 5 weeks, the 6 year old was with me. She had been breastfeeding at the time. After the recovery order today, he filed a parenting order for both children . They were together just under two years, and this concerns me greatly as he seems to be only doing that out of spite, than real care, he never had a nice word to say to her ( 6 year old) . As the grandparent , I have raised the 6 year old with my daughter and we are extremely close.

Will it help if i am appointed legal guardian? And how do I do this process if I am currently overseas and will be for another couple of weeks? I am able to bring the 6 year old with me, but I also don't want to jeopardise the court for my daughter by separating the siblings. There is no father listed on the 6 year old's birth certificate. He is particularly nasty and he is quite a bully.

 

[AllForHer]

If you don't want to jeopardise your daughter's case, it would be best to take a step back and let the parents sort out the issues with the child/ren. Being seen to denigrate and discourage the child's relationship with her father is frowned on by the court, as is overstepping the boundaries of parental responsibility, which belongs to the mother and father, not you. The child is not yours to make decisions about.

Hope this helps.

 

[Alana]

The childs father? The 6year old has no relationship with this man, I have stepped back from this, but my responsibilty as grandparent, I take very seriously, and quite frankly this is my grandchild and very much so should I make decisions about.This child lived with me for the first 5 years of her life!!! There is a history of violence, abuse and drugs on his familys side. We are dealing with a very intimidating bully on a daily basis.

 

[Victoria S]

Hi Alana,
To add to what @AllForHer said - yes, your grandchild has a right to a relationship with you. However, you don't have rights as a grandparent that trump the parents. Have a read of this LawAnswers blog article about options for grandparents that you might find informative: Grandparents Rights? A Quick Guide on Access to Grandchildren - Legal Blog - LawAnswers.com.au

 

[Alana]

Ok I would like to ask, does this non biological man, who was with my daughter for under 2 years, have legal right to obtain a parenting order for a child that is 6 years old. It would be extremely difficult for him to prove a meaning and substantial relationship with this child. Even when they were together the child was with myself 50% of the time.

 

[AllForHer]

My apologies, I misread - I understand now that the 6yo is the main concern here, rather than the 14mo, as the father is seeking orders in relation to both, despite the 6yo not being biologically his.

As the parties were in a de facto relationship (due to sharing a child), it is the case that he spent a period of the 6yo's life as a step-parent, and as such, may be considered a person concerned with the 6yo's care, welfare and development. As such, he is able to pursue parenting orders in relation to the child, and the court will use a threshold test to determine whether the relationship between the 6yo and the step-father is of such a nature that he would be considered a concerned person. If he is, it will then determine if it is in the child's best interests to have parenting orders made that facilitate the child continuing to have a meaningful relationship with him. Given the man is the father of the child's half-sibling, this may come to fruition.

As a grandparent, unfortunately, it is still not advisable to pursue guardianship of the child. Given that the current proceedings involve parenting orders for a child of whom the applicant is not the biological parent, there will be concurrent proceedings between your daughter and the 6yo's father (which will likely involve a declaration of parentage as well). The 6yo's father may choose to participate, or he may not, but in either case, you would need to become a party to those proceedings, and argue in favour of you having parental responsibility, rather than the father. This is not a common outcome in court proceedings - it's very difficult to have made.

Instead, it would be best for your daughter to argue that it's not in the child's best interests for the step-father to have parental responsibility or for the child to spend time with the step-father. Your role in these proceedings would be to provide an affidavit of evidence outlining the incidents which lead you to believe it is not of any benefit to the child to have a relationship with the step-father. That will be more constructive and stands a greater chance of success than seeking guardianship of the 6yo.

I would not take the 6yo abroad while proceedings are under way, as well. It may exacerbate issues, rather than help them.

I hope this helps.

 

[Alana]

Thank you for your reply. It is extremely difficult to sit back and watch this all happening, but i am happy to support my daughter in the best way possible.