Grandparents Rights Cominos Family Lawyers

Separation and divorce are painful for families to go through, in particular, it is difficult for children to have to experience. Where parents of a child are experiencing a separation and divorce, this may, at times, also impact the relationship a child has with their grandparents or another relative that is of significance to the child, such as a step-parent, sibling, aunt or uncle, or even a cousin.

No doubt, grandparents are influential figures in their grandchildren’s lives. However, for reasons that are completely unrelated to the grandparent, they all of a sudden being left out of their grandchild’s lives, particularly where the parents of the child do not get along, or who are going through a bitter divorce and the grandparent is now being refused to maintain any relationship he or she has with his or her grandchild.

At this stage, you are probably asking, as a grandparent, what are your rights in this situation?

Grandparents’ Rights Under the Family Law Act 1975

Pursuant to the Family Law Act 1975 (“the Act”), it recognises that a child has the right to see and spend time with other important people in their lives, apart from their parents, such as the child grandparents (or other extended family relatives such as a step-parent, sibling, uncle or aunt, nephew or niece, or cousin of the child).

The Act states:

“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).”

However, notwithstanding this, the Act does not give grandparents an automatic parental right to care for their grandchildren.

At this point, you’re probably wondering, well what else can I do?

Parenting Orders Under Australian Family Law

Who can apply for a parenting order?

Pursuant to the Act, a grandparent or any other person that is concerned with the child’s care, welfare or development, has the right to apply for a parenting order.

What is a parenting order?

A parenting order is an order of the court as to the parenting arrangements for a child and typically deals with issues such as:

  • Who the child will live and where they will live.
  • The time and communication the child is to spend with another person other than the child’s parents (such as grandparents).
  • The allocation of parental responsibility.
  • Any other aspect of the care, welfare or development of the child.

It is an order that is legally enforceable that all parties must comply with.

If you’re a grandparent, and your son or daughter is either unable, unwilling or does not have the capacity to care for your grandchildren, or your son or daughter’s ex-spouse is not permitting you to have any visitation rights with your grandchildren, then you can apply for a parenting order with the court.

Parenting orders can also be made by grandparents who are not only seeking visitation rights, but also if the grandparent is seeking custody (whether full or shared) of their grandchildren. This is often the case where the child is being subjected to abuse, neglect or family violence.

If a parenting order is made by the court in favour of a grandparent, the order can incorporate certain arrangements whereby the grandparent will be permitted to spend time with their grandchild on certain days. These visits could be, weekly, fortnightly, or even quarterly. You will be required, when making an application with the court for a parenting order, to specify what orders you are seeking as to how much time and communication you want with your grandchildren.

However, it is not as simple as it may seem, as there are certain factors that the court must consider prior to granting a parenting order.

Best Interests of the Child

Before the court can decide whether to make a parenting order with respect to the care and welfare of a child, the court must always have regard to the paramount consideration, being the bests interests of the child.

How does the court determine what is in the child’s best interests?

In determining what is in the child’s best interests, the court considers the following primary considerations:

  • The benefit to the child of having a meaningful relationship with their parents; and
  • The need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence;

However, once the court has addressed the above two primary considerations, the court will also consider additional considerations such as:

  • Any mature views expressed by the child (subject to consideration being given with respect to the child’s age);
  • The type of relation the child has with his or her parents, grandparents or any other relatives;
  • The effect on the child of any separation from the child’s parents or grandparents or other relative the child has been living with;
  • The capacity of the child’s parents and grandparents to provide for the child’s intellectual and emotional needs;
  • The child maturity;
  • Whether the child is Aboriginal or Torres Strait Islander;
  • Family violence.
  • Other factors the court thinks is relevant

However, notwithstanding the above, there are other avenues that a grandparent may consider rather than taking a litigious approach with filing an application with the court for parenting orders.  It may be the case for example, that the parents and grandparents of a children, come to a mutual agreement as to the care arrangements for a child, which can be formally documented with the court, by making an application with the court for parenting consent orders.

What are Parenting Consent Orders?

Parenting consent orders are orders that are made by agreement between the parents and grandparents of the child/ren with respect to the parenting arrangements.

A parenting consent order is made by the Court and carries just as much judicial weight as any other order a court makes at a hearing.

Unlike making an application with the court for a parenting order, which would involve a hearing with the court, parenting consent orders do not require any hearings as the parties are all coming to a mutual decision as to the proper care, welfare and arrangements of the children.

In the event that parents and grandparents of a child come to an agreement and want to enter into parenting consent orders, the court will still consider whether granting the consent orders will be in the best interests of the children.

If the court is not satisfied that the agreement is in the best interests of the children, then they will not make the Consent Orders.

Alternatively, rather than going to court, if you are a grandparent and you come to a mutual agreement with your grandchild’s parents, you may wish to enter into a parenting plan with the parents of the child which secures your rights with respect to seeing your grandchild.

What is a Parenting Plan?

Unlike a parenting order, or parenting orders made by consent, a parenting plan is not made by the court. It is recognised under the Act however it is not legally enforceable.

A parenting plan is a voluntary agreement in writing, signed and dated by both parents of the children.

A parenting plan deals with factors referred to above, such as:

  • Who the child will live and where they will live.
  • The time and communication the child is to spend with another person other than the child’s parents (such as grandparents).
  • The allocation of parental responsibility.
  • Any other aspect of the care, welfare or development of the child.

Accordingly, a parenting plan can document the arrangements that parents and grandparents have agreed upon with respect to a child’s care. This is an alternative way for a grandparent, without having to go to court, to secure their visitation rights with their grandchild/ren

A parenting plan can also be changed at any time provided that both parents have agreed to make the amendment.

Notwithstanding the above, if you are a grandparent and you are seeking access to see your grandchild, you should seek legal advice and ensure that you understand the responsibility that comes with caring for a child.

Disclaimer

The information contained in this article is intended for general information only and is not to be relied upon as legal advice.

Contact us: 02 8999 1800 or info@cominoslawyers.com.au.