Grandparents’ rights and Family Law
6 December, 2019Family Law
The Importance of Grandparents
Grandparents are playing an increasingly important role in children’s’ lives.
Many reasons – the cost of childcare, different family structures, economic pressures, both parents working full time – amongst others – have played a part in extending the role of a grandparent. From sometime sleepovers to regular and even full-time carers, more than ever before in Australia, grandparents are becoming a lynch-pin when it comes to raising children.
But grandparents and their relationships with children are sometimes caught up in the crossfire when the parents separate. Different sets of grandparents can find themselves being regarded as being on one side or the other. They can and do find themselves excluded from the lives of children that have known and depended upon them all of their lives. Naturally this situation can be very distressing for everybody, most especially for the children.
What does the law say about Grandparents rights to see their Grandchildren?
The Family Law Act 1975 (‘the Act’) governs much of what decisions are made by the Family Courts when it comes to children and their seeing or spending time with their grandparents.
The Act makes it very clear that when it comes to parenting and making of parenting orders, the most important consideration is the best interests of the child. There are a large number of factors that the law says must be taken into account in trying to work out what those ‘best interests’ are. Section 60CC of the Act sets these out in detail and one of those factors is the nature of the relationship between a child and grandparent.
If the relationship between child and grandparent is a strong and important one then it follows that is is a relevant consideration for a judge asked to decide what parenting orders are suitable. Of course that does not necessarily mean that orders will be made for a child to spend time with a grandparent. If the grandparents are not parties to the court proceedings themselves then they may struggle to be heard.
Legal right to apply for Parenting Orders for Grandchild
However the law can come to the aid of a willing and determined grandparent who does wish to see or spend time with their grandchild. Under the Act, at section 65C (ba), grandparents are specifically named as one of the types of person who can apply for a parenting order. So if a grandparent wishes to then they can apply directly to the courts for orders to see and spend time with their grandchild.
Where it is appropriate and in the child’s best interests grandparents can apply for orders that the grandchild lives with them and that the grandparents have ‘parental responsibility’ for the child instead of the parents.
Before applying to Court
Of course applying to court should really be the last resort. It is always better to reach an agreement if possible.
In fact before any application may be made for parenting orders there must be at least an attempt to resolve the dispute through a special type of mediator called a Family Dispute Resolution Practitioner. There are exceptions to this rule in some special cases where there is urgency or there are elements of family violence or abuse.
Suggested steps for Grandparents
A grandparent who finds themselves struggling to maintain their relationship with their grandchild following the separation of the parents might do well to follow these steps:
- Maintain civil preferably friendly relationships with both parents
- Try not to get drawn into the separation arguments and avoid taking sides
- Always keep the children’s best interests paramount
- Approach the parent with whom the child lives and seek to maintain regular contact
- If your efforts are rebuffed then try going through a neutral third party
- If still no success attempt Family Dispute Resolution (organisations like Relationships Australia are a good place to start)
Obtaining court orders – by consent or otherwise
Hopefully grandparents will be able to reach an amicable agreement with the parents about spending time with the grandchildren. If so then it may be a good idea to formalise these as consent court orders.
And if having tried all of the above then a grandparent has the right to file an application to the Family Courts for parenting orders so that a grandchild’s relationship with their grandparent can be continued into the future.
Legal help ready when you are
If you need legal help or guidance with parenting matters including as a grandparent please get in touch with our dedicated Family Law team on 07 5597 3366 or complete the Contact Us form below.
Please note that this article was prepared by Alex Wynn, Family Law solicitor and Senior Associate of Bell Legal Group for information purposes only. It is not intended to be legal advice and should not be relied upon as such.