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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42323
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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We are grandparents of 3 boys, 8, 10, 13, their parents are

Customer Question

We are grandparents of 3 boys, 8, 10, 13, their parents are separated, they live with their mother, the partner of the father continues to haras the boys, the boys have through their own lawyer stated they do not want to have any contact with her, their father encourages contact. There is a RVO on the father. They turn up at the boys sporting events & school with the female partner coming up suddenly to the boys, muttering 'my lovely boys' and stroking their faces and arms, the boys freeze, yesterday she and their paternal grandmother came across with their Rotwierler dog and caused scene, the father was on the other side of the sports ground taking photo's
A court order was put into place for alternate w/e access to the father last year which was continuing until May this year when after a report from the boys lawyer stated the boys decision.
The father & partner replied by emotionally attacking the boys saying he would not see them again for 4 years, he and his partner where going away. They notiflied their lawyer of this. Now they want to continue the previous court orders, The next family Court visit is in November. The boys are happy with their mum, we support them as grandparents.
but now we have the worry of them turning up at the school and the father has caused arguments. The school is powerless, so the boys are kept at home on those days. Police have been called by the father and they shake their heads as they know the boys are well and happy, the boys have councilling sessions, and have a mature understanding of the situation, although the female partner will not cease. Our daughter has legal aide but the father treat it with contempt.
Submitted: 1 month ago.
Category: Australia Law
Expert:  Leon replied 1 month ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

The court orders have to be amended to stop them going to the school and f the children fear for their safety then an AVO has to be take out against them to not go near the boys unless as stated by the court orders.

This is the only option available.

The youngest 2 cannot make a decision as they are too young but the court may listen to the eldest childs wishes not to see the other parent.

A child has the right to choose at the age of 14.

Until 1974, children had ‘the right’ to choose which parent they lived with at age 14. Since the Family Law Act came into effect in 1975, there has been no hard and fast rule.

The Family Court now looks at a number of factors in deciding with which parent a child shall live.

There is a presumption that it is in the interests of a child to spend as much time as possible with both parents. That is called a “rebuttable presumption” in that it is a starting point, but many factors are considered before the Court will make such an Order.

The wishes of the child are important. Equally important are the reasons for the Child stating those wishes, and also considerations such as the Child’s age, maturity and level of understanding. There is little point asking a 4 year old, no matter how bright the parents may think the child is. At the other end of the scale, the Court generally looks dimly on a Parent who demands a 16 year old be told by the Court with whom they shall live.

There is no magical age. The 8 year old should normally be asked, however the Court is not bound by what they say. It is a factor to be weighed-up. A 14-15 year old will normally have their wishes granted, so long as they are expressed to be for the appropriate reasons.

One case allowed 2 children (8 and 10 years old - sister & brother) to decide that they wanted to stop living with one parent and start living with the other because the other parent provided proper accommodation, took them to school, put shoes on their feet, and fed them as one would expect to feed children that age. Very basic needs which were not being met adequately by the first parent. At the other end of the scale, a 16 year old child with a significant mental impairment will be asked, however if the Court is not convinced that their wishes are actually in their best interests, other factors will take priority.

The Court specifically looks at the attitude of each parent towards the task of parenting, whether the parents are able to provide adequately for the child and whether a parent will actively promote the relationship between the Child and the other parent. The Court prefers not to separate Children where possible. Violence, drug and alcohol abuse are also considered.

I hope this makes sense and is of assistance If there is nothing further

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