If you are a grandparent facing the challenging circumstances of a break-up in your family group, you may be worried about your right to continue seeing much-loved grandchildren. Unfortunately, after separation or family conflict, some grandparents may only see their grandchildren at crowded school events or from the sideline at sporting occasions, if at all. Fortunately, in Australia, grandparents may approach a court for orders that they are allowed to spend time with their grandchildren or to express concerns about their grandchildren’s welfare.
What rights exist for grandparents and are they automatic?
While grandparents do not have automatic rights to see their grandchildren, they do have legal options available. The Family Law Act allows a grandparent (or other person concerned for the child’s care, welfare, or development) to apply for a parenting order. When determining children’s matters in Australia, the child’s best interests will always be the paramount consideration. In determining what orders to make, the court will consider:
- the arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care
- any views expressed by the child
- the child’s needs, encompassing developmental, psychological, emotional, and cultural aspects
- the capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs
- the benefits to the child in having a meaningful relationship with their parents, and people significant to the child
- any other factors that the court deems relevant to the specific circumstances of the child
The courts have previously emphasised the importance of children having contact with as much of their wider family as possible and of growing up feeling part of an extended and supportive family group. In addition to parents and guardians, others with a close ongoing relationship who are significant to the child, such as grandparents, and can show they are involved in the children’s welfare can also apply for parenting orders.
Applying for orders
Parents who are separating often make plans for the future care of their children informally and will agree on where their children will live. Some may draw up a written parenting plan setting out their arrangements for caring for the children. If you are concerned about your future contact with your grandchildren, you can ask to be included in such plans. The parents can make these plans formal by registering them with the courts in consent orders. Orders made about children are called parenting orders and each person affected by the parenting orders must follow them.
If you cannot agree with separating parents about your future contact with your grandchildren, you can apply to the court for orders yourself. The court will decide what caring arrangements are in the best interests of the child and may make orders for a child to live, spend time, and communicate with a grandparent.
In most cases, the law requires that families first attend family dispute resolution or mediation before going to court. An independent person trained in helping families discuss their differences will try to help everyone come to an agreement. You will need a certificate from an accredited dispute resolution practitioner to show you’ve attempted mediation before you can take court action.
If mediation fails, you should obtain legal advice before going to court. You need to find out how strong your case is, what forms and documents you will need to lodge with the court to support your case (these are called affidavits), what orders you should ask for, which court to start your case in, and the costs of taking legal action. Even if you decide to represent yourself in court, it is recommended to get legal advice about how to prepare your case. You must remember that the child’s best interests are always the priority. You will also need to consider the practicalities of being able to implement any arrangements you wish to make.
Grandparents can sometimes get involved and can apply to the Children’s Court to have the children placed in their care. You can apply to court for your grandchildren to live or spend time with you whether their parents are together or separated. You will not need a certificate of dispute resolution if there is a fear of violence or if the matter is urgent, or a party cannot take part in mediation because of a disability.
In cases where there is strong parental opposition to court orders sought by grandparents, a court-appointed family consultant may be required to prepare a family report for submission to the court, to assist the court in deciding whether to grant a parenting order for the grandparent.
Conclusion
Family law and children’s matters are complex and challenging. When a partnership breaks down between parents, there is often a significant and heart-felt impact on all family members, including grandparents who have until the separation, played an important role in the lives of their grandchildren.
This is general information, and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].