SA Ex-friend wants to mediate over relationship with child (not his own)

[tinker23]

Hi,
My friend has just got a letter from a lawyer on behalf of an ex-boyfriend/friend, requesting mediation in order to be able to see her child.
The child is not his, and she has an active and involved father.
The mediation comes at a cost of $900 per participant, which is money she just does not have. She really doesn't have money for a lawyer either.

This is an ex-boyfriend who was on-again off-again and he didn't want to commit or share a home with my friend and her daughter. My friend finally ended the friendship and refused to see him anymore, which meant not seeing her daughter either.
He did regularly babysit, and was great with the child. There is now no relationship between him and childs mother. He has been behind her back talking to her inlaws (the childs fathers parents) and is frankly being creepy about it all.

My questions:
1. The letter requires a response within 14 days, is this enforceable or simply a request?
2. Does he have a legal right to see the child even though there is no longer a relationship between him and the childs mother?
3. Can she simply say no to mediation, or should she get a family lawyer?
4. What is the best way to approach this situation.

Thanks so much for any help

 

[Atticus]

It's simply a request...

There is no legal obligation to accept mediation... Going on the limited info, (never having been in a live in relationship with mum or child) it doesn't sound like he would have any success in seeking any kind of parenting order via the family court either...

Probably just a polite refusal is best

 

[Tremaine]

1. The letter requires a response within 14 days, is this enforceable or simply a request?

A request, only a request. No letter from a lawyer is enforceable.

2. Does he have a legal right to see the child even though there is no longer a relationship between him and the childs mother?

Well, nobody has legal rights in relation to a child. The Family Law Act grants legal rights to children, the one of most interest here being 'the 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)').

So, anyone concerned with a child's care, welfare and development can apply for parenting orders, but they first have to successfully persuade the Court they're a person 'significant to [the child's] care, welfare and development' so the Court will protect the child's rights in relation to that person by making parenting orders, if the Court agrees it's in the child's best interests to do so.

Each matter is decided based on the individual facts of the case, and every case is different, but aside from unusual circumstances, a rule of thumb is that the more distant the link between a person and a child, the harder it is to persuade the Court that they're a person of significance. Parents usually have the closest link and so have the easier time getting parenting orders, followed closely by grandparents and siblings, then step-parents, aunts, uncles, etc. and finally, pretty much everyone else. Without any other mitigating circumstances (like if the applicant is a family friend whom the child lived with most of their life), if the parents don't their child spending regular time with someone in the 'everyone else' category, the Court is unlikely to make parenting orders to that effect.

Based just on the situation you've described - an ex who never lived with the child and was basically a babysitter from time to time, with whom the parents don't otherwise want in their child's life - it's highly, highly unlikely this person will meet the 'significant person' threshold, which brings me to my next point...

3. Can she simply say no to mediation, or should she get a family lawyer?

...she can just refuse mediation, and it probably won't go any further than that. I just like to explain the 'court pathway' because that's usually why people get a bit spooked about mediation - they tend to worry about what might happen once the process is started, and the most likely thing that will happen here is nothing.

4. What is the best way to approach this situation.

If it were me, I'd probably respond to the letter and politely decline the invitation to attend mediation. Don't stress about what happens next until it happens, which is most likely going to be never.