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Grandparents and Grandchildren – The Legal Position

“Young people need something stable to hang on to – a culture connection, a sense of their own past, a hope for their own future. Most of all they need what Grandparents can give them.”

– Jay Kessler

It is thought of as a “right of passage” for parents to evolve into grandparents and get the chance to commune with children without the responsibilities of parenthood. It’s an opportunity to play with a child and be their friend and support without consequences.

Sometimes this evolution from parent to grandparent is fractured by a breakdown in relationships with their adult children. The breakdown may be with your own adult child or with their partner. There may be abuse in that relationship which is beyond your ability to repair. Sometimes parents use their children as leverage and to obtain financial gain from their grandparents

What happens to your grandchildren?

It is a sad reality that children are significant casualties of parental separation. It’s hard enough when the separation is amicable. A child’s feelings of stability are undermined and the concepts of love and nurture no longer provide protection from external forces. Everything changes.

If the separation of parents is not amicable, and possibly violent, the children suffer the most. Even if the separation is concluded the child’s relationship with their grandparents can be disrupted. Parents can relocate or form a new relationship. The opportunity for grandparents to see grandchildren can be severely curtailed or be non-existent.

Changes in law

The Family Law Amendment (Shared Responsibility) Act 2006 introduced significant changes to the Family Law Act 1975 (“the Act”). The amendment confirmed and emphasised the importance of the relationship of grandparents and grandchildren.

Grandparents are specifically recognised in the Act. The act sets out the objects and principles of Sect 60B to ensure that the best interest of the children are met by (I am paraphrasing relevant sections of the Act):

• protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence,
• ensuring that children receive adequate and proper parenting to help them achieve their full potential, and
• ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

• 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), and
• children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

A court will determine what is in a child’s best interests in a primary sense which deals with essential conditions of health, safety and wellbeing and, assuming separation has occurred, having a meaningful relationship with both of the child’s parents.

A grandparent’s legal right

The additional considerations are most relevant to grandparents and formally recognise the significant role played by grandparents in children’s lives. That is:

• any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views,
• the nature and relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child),
• the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents or any other child or other person (including any grandparent or other relative of the child), and
• the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The above summary is selected from relevant parts of the Act namely, Sect.60B and Sect. 60CC.

Sect. 60CA provides the overriding (or paramount) principle. That is, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Each case is different

As in all aspects of family law the particular approach should be measured by the unique (almost always) set of circumstances relevant to the situation. The court will apply the principles as set out above with a view to achieving the summarised objectives. Whilst there is no automatic right as a grandparent to see your grandchildren the children do have a right to see you if it is determined that it is in their best interests (and, of course, the grandparent is agreeable).

Utilising the principles set out above, a court has the jurisdiction to consider a grandparent’s role if it must determine what future care and living arrangements would be best for the child.

The best approach

It is trite to say that utilising the court process is not a preferred option to seeking arrangements to maintain a relationship with a grandchild. Apart from the cost (significant if you do not have access to public assistance) the acrimony that can simmer between parents and grandparents may create barriers that are difficult to overcome.

Grandparents should always try to discuss options and seek agreement to arrangements. Mutually agreed arrangements usually work without any lingering resentment that sometimes arises from those that are court ordered.

Parenting plans

Grandparents can instigate mediation and seek assistance from a Family Relationship Centre. All parties are usually invited to mediate a sensible arrangement that can be documented by way of a Parenting Plan. These plans are utilised by parents and deal with issues concerning the child’s welfare.

A Parenting Plan can include a grandparent or other relative of the child. The plan must be signed by both parents so if there is no agreement the grandparents cannot be included. A Parenting Plan is not enforceable by a court but can be relied upon as a reflection of the intent of all parties when the plan was agreed.
The courts can consider the content and the intentions of the parties if the matter is litigated.

If all else fails

A grandparent is entitled to apply to the court if negotiation and/or mediation fail. The court will only grant an application if, upon consideration of the goals and principles set out above the application is considered to be in the child’s best interests.

The circumstances of care for the child may be such that a grandparent may feel it necessary to apply for custody or access. The court must be satisfied that the parent is unable to care for the child or the child is in danger.

If the court is satisfied that access or custody (to the grandparent/s) is in the child’s best interests a further order would be considered so as to confer upon the grandparent/s parental responsibility which allows the grandparent to make decisions for the child (schooling, health, living arrangements and religion) without the need to consult with the parents.

Alternatively the grandparent may simply be seeking quality time with his or her grandchild. That is an easier decision for the court to make although it must still be satisfied that the decision is in the best interests of the child.

The Act promotes mediation and discussion as a means to resolve disputes regarding children. Litigation should be regarded as a last resort. Sometimes there is no choice and the Family Court is set up and available to make a decision where only a legally binding resolution can succeed. It is important to note that it is compulsory to attempt to reach agreement by mediation before commencing proceedings.

A certificate must issue from the mediator noting your attempts to mediate and be made available to the court before any application will be accommodated.

In summary

It is important to understand the dynamics that the court applies. The court will have regard to and consider arrangements for children on the basis that they have a right to a meaningful relationship with their grandparents. Arrangements that the court may put in place will not be as extensive as that between a parent and his or her child. In certain circumstances the orders for care of a child by a grandparent/s may be extensive and a subjective approach is always applied taking into account the welfare needs of the child.

Obviously, a grandparent must actively engage with the parents in negotiation, mediation and, if necessary, the court process in order to warrant consideration by the court when determining care arrangements.

Grandparents will invariably be successful in obtaining orders or arrangements for some form of communication and time with their grandchildren.

The child’s needs and the availability of the grandparent will determine the extent of the arrangements. In normal circumstances it is expected that grandparents will work with the parents rather than replace them. Sometimes it may be appropriate for a grandparent to step back and not add to the conflict.

All these variables are “packaged” so that a determination can be made taking into account the child’s interests, the grandparent’s availability and the particular circumstances of the case.

Key takeaway

It is important for grandparents to consider the impact that their involvement will have on all parties including the parents and to make sure that their goal is child focussed and conducive to a child’s ongoing welfare. An important takeaway from this is that a child’s right to have a meaningful relationship with his or her grandparents is enshrined in the Act and is not dependant on the whims and fancies of the child’s parents.

Contact Us

If you have questions seek the assistance of a family lawyer. Obtain advice as to your options and then attempt to negotiate an appropriate outcome. If all else fails our team of family law specialists can provide appropriate and cost effective guidance to assist you in achieving your goal with regard to your relationship with your grandchild. Call 1800 999 529, email or submit an enquiry below.

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