Key Takeaways:
- There is no explicit right for a grandparent is see or have a relationship with their grandchild in the Family Law Act.
- Children have the right to have a meaningful relationship with their parents and other people who are important to their care and development, including grandparents.
- When it comes to rights, relationships and children, it is the children who have the right to these relationships which can be a confusing concept for adults to understand.
- As a grandparent, you may be able to apply for parenting orders related to a child but this is best discussed with a family law expert.
Grandparent’s Rights
Grandparents can play a significant role in the lives of their grandchildren. From being a close family member who may help their grandchild to develop personally and culturally, to in some cases, being the main carer for them. However, while many people enjoy amazing relationships with their grandparents, it’s also not uncommon for issues within the family dynamics to reduce the amount of time grandparents and grandchildren may spend together.
The relationship between a parent and their adult child can greatly affect the relationship of the grandparent and their grandchild – from a reduction in the amount of time they spend together to a completion cessation of the relationship.
Whether it’s due to a separation, divorce or just a difficult relationship that you may have with your child, if you’re a grandparent, you may be wondering what a grandparent’s rights are when it comes to spending time with and being in your grand child’s life.
In this article, we’re going to answer the most common questions we’re asked about the grandparent’s rights to see their grandchildren and family law in Australia.
Grandparent's rights - do I have a legal right to see my grandchild?
Under the Family Law Act 1975 (Cth) – the legislation that guides the Australian family law system – grandparents rights are not explicit, as there is no direct legal right to see or have a relationship with the grandchildren. It’s the same for the parents of the child. This may sound strange; however, the Family Law Act focuses on the rights of the child being paramount, and in Section 60B of the Act, children have a 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). Children have the rights to these relationships and the parents have the responsibility to provide and care for their children.
However, while the child has the right to these relationships, as well as the right to be protected from any kinds of harm, decisions that are made about them, including how they will spend their time must be made with their best interests as the main consideration.
While grandparents may not have an explicit legal right to see their grandchildren, the importance of the relationship between grandchildren and grandparents is recognised under the Australian family law systems and there are options available to grandparents to apply to the court to spend time or to even have primary care of their grandchildren.
What Does Best Interest of the Child Mean in Family Law?
When we talk about the “best interest of the child”, it is in relation to Section 60CC of the Family Law Act, where there are two primary considerations that the best interests of a child are based on. These considerations are:
- “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
When making decisions, the court gives greater weight to the second consideration – protecting the child from any kind of harm.
While the two considerations above are considered the primary considerations, there are a number of other factors that the court may take into consideration when making decisions about a family law matter that affects a child. These include:
- the child’s relationship with each parent and other persons, including any grandparent or other relative of the child;
- any views expressed by the child and related factors, such as their maturity or level of understanding;
- how much each parent is willing to participate in making decisions about major long-term issues including how much time each parent spends or communicates with their children;
- the likely effect of any changes in the child’s circumstances, including the separation from the parents or any other person (grandparents or relatives) they are living with currently;
- any family violence involving the child of a member of their family;
- any family violence court orders applying to the child or a member of the child’s family.
These considerations highlight the acknowledgement of the Australian family law system of the importance of the relationship of a child and their grandparent – as long as it is in the child’s best interests.
Can a grandparent be denied access to their grandchild by the child’s parents?
Often, when a grandparent is denied visitation to their grandchild, it is usually due to the relationship between the grandparent and parent, or because of breakdown of the relationship between the parents of the child in question.
These factors can make it enormously difficult to communicate and arrange visitations and can severely impact a grandparent’s ability to have a relationship with their grandchild.
While a grandparent doesn’t have an automatic right to see or have a relationship with their grandchild, as someone who has an ongoing relationship with a child, or is concerned with the care, welfare and development of a child, they can apply to the court for a parenting order.
What is a parenting order?
A parenting order is a set of legal orders made by a court about parenting arrangements and responsibilities for a child.
While the name parenting orders may imply that you’re applying to be their parent, parenting orders can actually cover a wide range of issues and topics, including who and where children will live, information about their school and medical treatments, and who children with communicate and spend time with.
Parenting orders can be made based on an agreement that has been made between the parties – these are known as consent orders and are a way to legally formalise an informal agreement. Parenting orders can also be made after a court hearing or trial where the court will make decisions based on the child’s best interests.
Parenting orders are legally binding and all parties that are involved must follow the orders or may face significant consequences such as fines, community service or even imprisonment.
How does a grandparent apply for a parenting order?
Applications for parenting orders can be made to the Federal Circuit and Family Court of Australia. If you’re a grandparent and you’ve been able to come to an agreement with your grandchild’s parents, then you can apply to the court for consent orders which will legally formalise the agreement.
If you and the child’s parents are unable to agree, then the decisions may need to be made by the court, and an Initiating Application to the FCFCOA will need to be submitted.
Before seeking any type of court order, it is best to discuss your matter with an experienced family lawyer. Family law is complex and understanding your rights and responsibilities towards your grandchildren is vital to ensure that you’re going to achieve the best outcome for your circumstances. A family lawyer who specialises in children and parenting matters can help you understand the best course of action to take and usually make the process a lot easier for you.
While applying to the court for a parenting order is an option available to grandparents, other options, such a mediation and negotiation, where you can come to an informal agreement may be enough to gain access to your grandchildren. Which is why it’s even more important to ensure that you seek legal advice from a family lawyer sooner rather than later.
Can a grandparent have custody of a grandchild?
Child custody and parenting arrangements are highly complex and entirely dependent on the unique circumstances of the situation. There are situations where it may be in the child’s best interests to be in the care of their grandparents, for example if the child’s parent/s:
- are unwilling to care for a child;
- lacks the capacity or ability to care of a child; or
- is unable to care for the child.
Factors such as substance abuse issue, mental health issues that impact their parenting abilities, imprisonment or working situations may impact a person’s ability to parent a child properly. Before a court will grant custody to another person, such as a grandparent, they will need to be satisfied that the parent/s fall into one of the categories above and are unable to care for their child.
If you gain full custody of a child, you will also have parental responsibility for that child.
Before making any application for custody of a child, seeking legal advice from a family lawyer who specialises in custody and parenting matters is extremely important. You need to understand your legal standing and responsibilities.
Grandparents and Parental Responsibility
Under the Family Law Act – section 61B – parental responsibility is “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
The parents of a child automatically have parental responsibility unless a court order has been made saying otherwise. There is also the presumption that both parents have equal shared parental responsibility, where both parents must consult with one another to make decisions about the matters that will affect their child – even if the parents are separated or no longer in a relationship.
If you’re granted parental responsibility as a grandparent, this will mean that you can make decisions relating to the child’s care, welfare and development without needing to consult their parents.
Do you need legal help regarding your grandchildren?
If you’re a grandparent and you’ve been denied access to your grandchildren, we’re here to help you at Unified Lawyers. Our family lawyers know how emotionally stressful and overwhelming legal issues involving your family and family law matters can be and we’re here to help you find the best avenue that will help to resolve your matter and achieve your desired outcome.
Our family law services are available to people all over Australia – so call us today on 1300 667 461 or book your free consultation using the button below.
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