By Gianna Huesch
When parents separate, grandparents can find their relationships with their beloved grandkids affected, sometimes to the point where they feel shut out and no longer able to see their grandchildren. So what legal remedies do grandparents have under the Family Law Act 1975?
The law is clear in recognising the importance of children continuing to have relationships with their grandparents after the parents separate. As the Federal Circuit Court spells out: “The law states that children have the right to spend time and communicate with their parents, and other people important to them, such as grandparents, relatives and members of extended families.”
It’s important to know that grandparents’ rights aren’t enshrined in law in the same way that parents’ rights and obligations are. For example, where the law says that children have the right to know their parents and form meaningful relationships with them, it doesn’t also say this about grandparents. Further, really important developments such as the presumption of equal shared parental responsibility do not apply to grandparents, the way they do to parents. These legal differences can have hugely different outcomes in court.
Nevertheless, under the Family Law Act, grandparents are eligible to bring an application to the courts to have time with children and even step in to the full time carer role and get parenting orders in their favour, when parents can no longer look after their children. This can sometimes be the best solution in situations where a child’s life is subject to instability or where there are concerns about parental capacity, for example due to health or drug issues. (It’s important to note that State laws about child protection can have priority over Federal family law. For example, if DOCS has stepped in and assumed responsibility for a child because the parents can’t care for it, there is no real point seeking an order in the Family Court over that same child.)
Despite not having automatic legal rights to be involved in the lives of grandchildren, grandparents can still make applications and can seek orders in the family courts to have parental responsibility, full-time care of, or simply spend time with a child. When grandparents seek to become the primary carer of grandchildren in their role as a kinship carer, the legal expression you may hear is that ‘parenting orders are made in favour of grandparents’.
Unless there are concerns for the children’s welfare, urgency, or other exceptions, attending mediation with the child’s parents is usually required to be undertaken with an accredited Family Dispute Resolution practitioner, before applications can be filed in the family court. On the other hand, grandparents with urgent concerns over a child’s welfare can make urgent applications to a family court without first attempting mediation.
In situations where grandparents are not seeking to be granted primary care, but find themselves being prevented from seeing their grandkids with whom they previously shared a close relationship, it is also possible to take legal action to obtain orders allowing them to spend time with the children.
If both parents are opposed to an application, the courts will look at the stresses such opposition by the parents will have on the kids in the middle. However, if the children benefit greatly from an existing grandparent relationship, the court may make orders which preserve the time the children spend with the grandparent. The court will look at the overall picture, and what scenario will meet the “children’s best interests” tests. Often, one parent will be naturally aligned to grandparents and their spouse will be ‘the other side’. In such cases, you may find that there is a parent applicant, and one or more grandparent co-applicant, all of whom want the same thing. Sometimes this is a good thing, eg if there are allegations of mental health, drug abuse etc made against a parent, the presence and stability of the grandparents may give comfort to the other parent. Such grandparents may be parties to orders requiring them to be present at contact visits, supervised their own son or daughter and hand a grandchild back if they observe their son or daughter to be drug-effected or mentally unwell.
If you are a grandparent and are concerned about parenting arrangements for your grandchildren, or wish to apply to have the court permit you to spend time with your grandchildren, seeking advice from an experienced family lawyer will help you determine the best course of action to take. Alliance Family Law has previously represented grandparents in family law matters.
Are you a grandparent who would like family law advice in relation to your grandchildren? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.
Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.