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02 October 2019

Grandparent Rights When Parents Separate

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The Family Law Act is the source of power to make Parenting Orders for responsibility for making decisions for a child, about where they live, who they spend time with, their education, health and other long term care and welfare matters.

Since 2000, grandparents have been specifically identified as persons, who apart from parents, may apply for parenting orders under the Family Law Act.  Other persons who are entitled to apply are, the child, and, any other person concerned with the care, welfare and development of the child.

Grandparents in my experience can have an important role in children’s lives and may be given significant parental duties caring for pre-school children and providing supervision out of school hours.

The latest inquiry into the Family Law system is tasked with looking closely at issues affecting grandparent carers in Family Law proceedings, that is older Australians who find themselves taking on parental role for grandchildren. These issues are likely to be about how grandparents maintain a relationship with their grandchild if the parents separate or if a parent moves away with the child or does something that interferes with the time the child spends with the grandparent.

Sometimes a grandparent’s carer role becomes greater if neither parent has capacity to provide a safe environment for the child, or the child is at risk of serious harm. The safety of the child and protection from risk of serious harm is a primary consideration in decisions about care arrangements for children.

However, where the risk of serious harm is not a factor then the Court will consider the child’s relationship with each of their parents before any other factor. The Courts have interpreted and applied the Act to protect and promote a child’s relationship with their parent above all other relationships. The Act recognises the child’s right not to be separated from his or her parent unless it is in their best interests to do so. The fact that grandparents are specifically mentioned as having the right to apply for parenting orders does not affect this right.

When a grandparent is stopped from having a relationship with their grandchildren it can be for a number of reasons. Maybe your relationship with your own child has broken down or perhaps your son or daughter is not spending time with the child and the other parent refuses to allow you to spend time with the child. Whatever the reason, anyone who has an ongoing relationship with the child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for Parenting Orders.  But remember there is no automatic right to have a relationship with your grandchild and a Court will decide the issue based on the best interests of the child.

If you are a grandparent having difficulty in maintaining a relationship with your grandchild contact one of our experienced family lawyers now to assist you moving forward.

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