Do grandparents have a special and unique relationship with their grandchildren that is enshrined in our family law? Can a court oblige parents to allow grandparents to see the grandchildren, even if the parent-grandparent relationship has broken down? Let’s take a look at those questions as they are explored in a recent case in the family courts.
Who can seek time with a child?
Under Australia’s family law, certain “non-parents” are able to bring applications in the family courts seeking to spend time with a child. Some non-parents are biologically related to the child, such as grandparents or other relatives; others may not be, for example step-parents. The relevant criterion under section 65C of the Family Law Act is that the non-parent is someone who is “concerned with the care, welfare or development of the child”.
Grandparents, or indeed parents for that matter, don’t have any automatic “rights” in relation to their grandchildren. Instead, the law is framed around a child’s right to have a meaningful relationship with significant people in their life.
However, a child’s relationship with a grandparent is regarded as “significant” in the legislation, which expressly acknowledges that children have the “right to spent 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…)”
Therefore, if parents deny a grandparent access to their grandchild, the grandparent may apply for a parenting order allowing them to spend time with the child.
How does the court decide these applications?
Any application for a parenting order by a non-parent is determined the same way that an application by a parent would be, so applications are decided wholly on the basis of what would be in the child’s best interests. That said, many of the considerations in the relevant part of the Family Law Act do apply specifically to parents, so are not considered in cases involving non-parents. Instead, the court looks at the specific facts of each matter to decide whether it’s in the child’s best interests to make a parenting order for time with a non-parent. The courts will look closely at the ability of the grandparent to care for the child, as well as family dynamics and the effect on the children of any orders being made.
How a recent matter was decided
A recent matter heard in the courts (given pseudonyms Wyard & Wyard), required the determination of whether a grandmother should be granted time with her two small grandchildren aged five and three.
The children live in an “intact” family, with the parents united in their resistance to the paternal grandmother spending any time with them. The parents have a “fractured” relationship with the grandmother, who hadn’t seen the children for two years until interim orders had allowed her to have supervised visits at a contact centre. The children were described as well-adjusted, happy children, who don’t have any separation anxiety, for which the judge praised the parents.
The parents don’t want the children spending any time with the grandmother, for a number of reasons. The mother told the court:
“[The father] and I are not confident that the applicant will look after our children and respect our decisions as parents. The applicant has questioned our parenting decisions in the past and we do not consider she will follow them. We do not feel our children are safe with the applicant on her property. Based on the applicant’s past behaviours towards [the father], particularly when she is intoxicated or angry, [the father] and I do not want to risk our children being exposed to the same abuse and violence.”
When a grandparent doesn’t respect parental authority
Although the grandmother told the court she would “respect the parental decisions”, the court found this conflicted with evidence that she had frequently disregarded the parents’ wishes and that she had a “low level of respect…for the parents’ capacity to make appropriate decisions for their children”. At various times the grandmother referred to parental decisions as “over the top” and “petty”, and said that simply doing what she wanted was “not a big deal”. The court said the grandmother doesn’t have “a great deal of insight into her actions or the effect they are having on the [parents]”.
The court said the onus was on the grandmother, who had brought the application, to show why the orders she wanted would be in the children’s best interests. The grandmother did not do so, so her application was dismissed.
You can also read the FCFCOA advice on grandparents, including information on when grandparents wish to seek to have primary care of children rather than simply spend time with them.
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.
You may like to read: Can step-parents apply to spend time with children after divorce?