Grandparents’ Rights To See Grandchildren

If you are a grandparent with a relationship breakdown in the family, you can take steps to safeguard your right to see your grandchildren

If you are a grandparent facing the challenging circumstances of a break-up within the family, you may be worried about your right to continue seeing your much-loved grandchildren or whether you can apply to care for the children on a full-time basis.   Fortunately, in Australia, grandparents may approach the court for orders allowing them to spend time with their grandchildren, or to have their grandchildren live with them if the parents pose a risk to the welfare of the children.

What rights exist for grandparents and are they automatic?

While grandparents do not have automatic rights, the Family Law Act 1975 allows a grandparent or other person concerned for the child’s care, welfare, or development, to apply to the court for parenting orders.

When determining suitable arrangements for children, the court’s paramount consideration is implementing arrangements that are in the child’s best interests. 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 court is alive to the importance of children having contact and a connection with their extended family and feeling part of an extended and supportive family dynamic.

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 the arrangements or the parenting plan. The parents can  formalise their arrangements by registering them with the courts and having them made into consent orders. Orders made about children are called parenting orders and each person included in the  orders must follow them.

If you cannot agree with the separating parents about spending time 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 can make orders for a child to live, spend time, and communicate with a grandparent having regard to all the circumstances.

In most cases, the law requires that families first attend family dispute resolution or mediation before going to court. An independent person trained in assisting families discuss their differences, called a dispute resolution practitioner, will try to facilitate an agreement being reached. You will need a certificate from an accredited dispute resolution practitioner to show you’ve attempted mediation before you can make an application to the court .

If mediation is unsuccessful, you should obtain legal advice before making an application to the court. You should get advice on your prospects of success in obtaining orders, what forms and documents you will need to lodge with the court to support your case, what orders you should seek, 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 first.  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 having regard to the time the children spend with each parent.

Conclusion

Family law and children’s matters are complex and challenging. When a relationship breaks down between parents, there is often a significant and heart-felt impact on all family members, including grandparents who have  an important role in the lives of their grandchildren and often a very close and loving relationship.

If you or someone you know wants more information or needs help or advice, please contact our Family Law Specialist Alison Brown or phone us on (02) 9923 2321.