Grandparents and the Family Law system
Grandparents can find themselves in the Family Law system for various reasons. In some matters grandparents may be seeking to spend time with or communicate with their grandchildren, in other matters they can seek that their grandchildren live with them.
This week we take a detailed look into grandparents in the Family Law system.
Do grandparents have rights under the Family Law Act?
The law recognises the importance of a child having a relationship with their grandparents, including the continuation of that relationship after the child’s parents have separated.
Under the Family Law Act the primary concern is making orders that are in the child’s best interests. That includes orders about whether the child spends time with, communicates with or lives with a grandparent.
Reasons are grandparent may apply for a live with order
It may be necessary or desirable for grandparents to apply to the Court for their grandchild to live with them as opposed to living with the parents.
This can arise if one or both of the child’s parents: -
are unwilling or unable to care for the child;
are struggling with drug, alcohol addiction or mental illness and the child is at risk;
have exposed the child to family violence or engaged in family violence towards the child;
are neglecting the child; or
do not have the capacity to care for the child or provide for the child’s needs.
Grandparents bringing or joining an application
As a grandparent if you are not able to spend time with your grandchild, or you are concerned your ability to spend time with your grandchild will cease following their parents’ separation, you should start by talking with the parents. This may be an informal discussion, a mediation or a lawyer assisted mediation. If an agreement is reached, a parenting plan or consent order can be made that sets out your time with your grandchild.
If the situation cannot be resolved through negotiations, or you have concerns about your grandchild’s safety, the Act allows certain ‘non-parents’ to bring applications in the Court to spend time with a child, communicate with a child or have the child live with them. Grandparents are specifically named as persons who can seek a parenting order for a child.
This allows a grandparent to bring an application themselves or join an application that is already before the Court. For example, a grandparent may seek to join a dispute between the child’s parents to ensure that they can continue spending time with their grandchild. A grandparent should obtain legal advice before joining proceedings as it may not be necessary for them to be added as a party to the proceedings. If a grandparent joins themselves unnecessarily there may be cost implications later.
Best interest considerations and grandparents
In deciding whether it is in the best interests of the child to spend time with their grandchild, or have their grandchild placed in their care, the Court will have regard to numerous factors including: -
the need to protect the child’s physical or psychological safety;
the benefit of having a meaningful relationship with the child’s parents;
the nature of relationship the child has with the parents and grandparents;
whether the child is financially supported;
the likely effect of change on the child
whether there is evidence of any family violence; and
any views of the child if they are old enough and mature enough to convey relevant views.
If the Court does not consider that it would be in the child’s best interest to have a relationship with their grandparent, the Court can decline to make orders.
In the case of Oldfield & Anor & Oldfield & Anor [2012] the Court deemed it in the children’s best interest not to make orders that they spend time with the paternal grandparents.
In this matter the relationship between the paternal grandparents and the parents had soured. The grandparents brought an application before the Court seeking time with their two grandchildren, aged 10 and 6. The grandparents sought to spend time one weekend per month, during the school holidays and on special occasions. The application was opposed by the parents. The parents ultimately sought that no orders be made in respect to the children spending time with or communicating with the grandparents.
When considering the evidence put forward by the Grandmother and the Mother, the Court commented that both the Mother and Grandmother appeared to place greater emphasis on ‘winning’ the Court proceedings rather than focusing on the children’s needs.
In a lengthy judgement the Court noted it had three options. These were outlined as: -
Dismiss the grandparents’ application which meant the children may not have any relationship with their grandparents.
To make orders that the children spend time with the grandparents in accordance with their wishes. The Court commented that this placed an “undue burden and responsibility upon the children and is neither child-focused, nor in the best interests of the children.”
Make similar orders to that sought by the grandparents. That would have the children spending significant time with the grandparents. The Court noted that previous orders had been made for the children to spend time with the grandparents and those arrangements had deteriorated further.
The Court ultimately dismissed the Grandparents application. In doing so it stated: -
....It is to give the parents the responsibility to decide about what time, if any, the children are to spend with their grandparents . It requires liaison between the parents and the grandparents , as well as a recognition of the need for communication between the parents and the grandparents and perhaps, most importantly of all, an acknowledgement by the grandparents that whilst they have a significant and substantial role to play in the lives of their grandchildren, the mother and the father have the primary role and responsibility and it is not one that should be usurped by an order of the Court [at 171].
A practical guide for grandparents
If you are a grandparent who is considering their options in relation to your grandchild, the following is a practical step-by-step guide of the relevant steps and considerations. This guide is not a substitute for obtaining legal advice from a lawyer.
If it is safe for you and the child, consider contacting the child’s parents and asking for time to see your grandchild or to have contact with them.
If unsuccessful in your attempts to ask for time directly with the child’s parents, request that they attend mediation with you. The Act requires people to try family dispute resolution/mediation first from an accredited family dispute resolution practitioner. If the mediation is successful the agreement about time you spend with your grandchild can be written up in a Parenting Plan or Consent Orders.
If the parents refuse to attend mediation you will be issued with a Section 60I Certificate. All parties are required to have a Section 60I Certificate when commencing Court proceedings. There are exceptions for circumstances where an urgent application is required to be made where a child may be a risk of family violence or neglect.
If you are not able to resolve the dispute about spending time with your grandchild through mediation, seek legal advice about your situation and how to proceed. You will have to apply to the Court for an order if you want to spend time with your grandchild or you want them to live with you. As mentioned above you can only lodge an application if you have a certificate from an accredited family dispute resolution practitioner or reasons to seek an exemption.
Any application for a parenting order by a non-parent is determined the same way that an application by a parent would be. The Court must consider what would be in the ‘child’s best interest’. Even after the matter is filed with the Court, the Court will still encourage the parties to resolve the dispute themselves before they make a final decision.
It can take considerable time for Court proceedings to finish from the date of the initial application to the Final Orders being made, according to the complexity of the case. However, Interim Orders can be made in the meantime. You can represent yourself in Court however proceedings can be complex and confusing therefore it is advisable to receive legal advice about what you should do and how you should prepare your case.
The Court may order an Independent Children’s Lawyer to be appointed to represent the child’s interests to form an independent view of what is in the child’s best interest and also make the Court aware of the child’s wishes.
The Court can also order a family consultant to interview and observe the parties and the child and prepare a family report for the Court.
The Court will look closely at the ability of the grandparent to care for the child, as well as the family dynamics and the effect on the child of any orders made.
Are you concerned about your grandchild’s safety?
If you have concerns about the safety of your grandchild, you may consider: -
speaking with the police who may investigate your concerns or conduct a welfare check to ensure the safety of the child;
report your concerns to the Department of Communities and Justice (DCJ); or
taking legal action under Family Law Act.
Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.
