What happens if parents oppose grandparents’ involvement with children?: When parents separate, grandparents can find their relationships with their grandkids affected, sometimes to the point where they are no longer able to see their grandchildren. Do grandparents have any legal remedies under Australia’s Family Law Act? And what happens when parents oppose grandparents’ applications in the family courts?
Australian family law is clear in recognising the importance of children continuing to have relationships with their grandparents after 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.”
But there are differences to note. 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. Also, the presumption of equal shared parental responsibility does not apply to grandparents, as it does to parents. These differences can have substantially different outcomes in court.
Nevertheless, under the Family Law Act, grandparents are eligible to bring an application in the courts to have time ordered with grandchildren or in some cases even step in to the full time carer role and get parenting orders, if parents can no longer look after their children. This is sometimes 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. 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. If grandparents have urgent concerns over a child’s welfare, they can make urgent applications to a family court without first attempting mediation.
Just wanting to spend time with the children
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.
The courts recognise the close bond that children and grandparents can share, and as such, grandparents can make the same applications as children’s parents seeking orders for time to be spent (as can any other person who is meaningful to the child and is interested in their welfare).
In such cases, the courts will look at the overall picture and consider what is in the best interests of the child.
What if the parents don’t support the grandparents’ application?
When one parent is opposed
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, supervise their own son or daughter and hand a grandchild back if they observe their son or daughter to be drug-affected or mentally unwell.
When both parents are opposed
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. 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” .
This is exactly what happened in a recent family court case, called Sarti and Anor & Sarti, where the parents were separated but “united in opposition” against an application by a grandfather to spend time with his five year old grandson.
In this case, much consideration was given to how the conflict between the grandfather and the parents could potentially affect the presently “harmonious” parenting relationship and therefore ultimately negatively impact the child.
The parents argued that the courts had not given sufficient reason for interfering with their parental decision not to enable contact between the child and grandparent. Courts are, of course, able to make parenting orders that the parents do not necessarily like or agree with. That’s because when parents are granted parental responsibility under the Family Law Act, is has effect “subject to any order of a court”. However, any court-ordered interference to parental decision-making is not done lightly. The court in this case said the grandfather and child had, “from the child’s perspective, built a relationship which is uncomplicated and happy” and this was worth saving. The court said this overrode the stress and tensions between the parents generated by enforced dealing with the grandfather.
In this case, despite the court agreeing that the parents’ decision to stop contact with the grandfather was “carefully considered and [a] reasonable exercise of their parental authority”, it was decided that because the child already had a pre-existing meaningful relationship with his grandparent, it was in the child’s best interests to maintain that relationship.
This judgment can be found here.
If you are a grandparent and would like specific family law advice relating to your circumstances, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.