Family situations can be very complex. Some of the most stressful times in people’s lives are when their relationship has broken down and this doesn’t just apply to the couple in question – it impacts the entire family unit, and especially grandparents. Attwood Marshall Lawyers Family Law Special Counsel, Michael Twohill, discusses on Radio 4CRB, some of the common legal questions grandparents ask about their rights to spend time with their grandchildren, particularly when the child’s parents are no longer together.
Introduction
When parents separate, in most cases they can move through the separation period and make arrangements that are in the best interests of their children, which includes making provision for each parent to spend adequate time with their child, or children, as well as consider a child spending time with extended family, including grandparents. Unfortunately, we see many cases where that may not happen, and children lose contact with one of their parents, or their extended family (and especially grandparents) from either side.
So what rights do grandparents have to see their grandchildren? Unfortunately parents can punish their former spouse by refusing access to the child or children by grandparents. We explore those issues below.
The impact divorce has on children’s relationships with family members
Some of the reasons why children may lose contact with certain family members may simply be a result of the parents having a bitter divorce and not being able to work through their own issues or communicate effectively and consider the needs of the child or children. Domestic or family violence may also be a factor in some families. Then there are also issues that arise when one parent moves to another location after they separate from their former partner and travel becomes an obstacle for the child to be able to spend time with their mother, father, grandparents, or extended family. This issue became more concerning in the COVID era with many parents and grandparents simply cut off from children due to hard lockdowns and border restrictions. When parents decide to go their separate ways for whatever reason, there can be an unintentional flow on effect and that decision can impact the relationships grandparents have with their grandchildren.
This can be extremely distressing for grandparents that may have once had regular contact with their grandchildren and maintained loving relationships, to then be left feeling disconnected or unable to spend as much time as they would like with them. The reality is, in the breakdown of a relationship there are not just two parties that are affected by this.
The Family Law Act 1975 acknowledges that children have a right to have a relationship with both their mother and their father and other people who are significant in their lives. That includes grandparents.
So, where does the law stand on grandparent’s rights to spending time with their grandchildren?
Grandparents who no longer can see their grandchildren as much as they would like, or at all, following on from the separation of the child’s parents, may have legal rights, however it is a very difficult and complex area of the law. It comes down to what is in the best interests of the child. If the child has previously had a loving and consistent relationship with their grandparents, there should be no reason as to why that should stop.
The Family Law Act says that above all else the best interests of the children are of paramount importance, and that means above everything else. Grandparents do not have automatic rights to have a relationship with a grandchild by law and when it comes to a child having a relationship with their parents and extended family, it comes down to a Court deciding what is in the best interests of the child.
How does a Court decide what’s in the best interests of the child?
The Court will consider several factors. Firstly, they will consider the benefit to the child of having a meaningful relationship with both parents and extended family and if there is the need to protect the child from any risk or harm. Risk is a very significant factor! Protecting a child from harm is going to be the most important factor that the Court looks at and will override the importance of children having a meaningful relationship with both parents and extended family.
In some cases, the Court will consider:
- The views of the child, depending on their age and the level of their understanding of the circumstances.
- The child’s relationship with both parents, grandparents, and other relatives.
- The effect of any change to the current situation on the child if the Court were to make an order for them to spend significant time with their grandparents and in some case the other parent.
- The capacity of each parent and others to provide for the child’s needs, for a grandparent this may include considering that person’s health, age, or financial circumstances.
What options does a grandparent have if the parents are still together but are not allowing them to spend time with their grandchildren?
In instances where the parents are still together, but they have estranged from their own parents, if a grandparent is being stopped from seeing their grandchildren, then grandparents do not have automatic rights to have a relationship with that grandchild. If you find yourself in this situation, it is best to try to come to an agreement about how and when grandchildren can see their grandparents directly between the parents and grandparents. It is in everyone’s interest to resolve disputes of this nature without taking legal action, which in most cases will only add fuel to the fire and cause more conflict.
If both parents say they don’t wish for their children to have a relationship with the grandparents, the Court will have an extreme difficulty in making an order that demands the children spend time with the grandparents, going against the parent’s wishes. Although it is going to be difficult to obtain a court order in these circumstances, it is not impossible.
Some circumstances where it might be a different matter is when drug use or addiction is a factor. If a parent is not capable of providing appropriate care for their child due to addiction or other risk factors, a grandparent may step in and apply to the court to seek a parenting order. For example, the children may be being looked after by the grandparents by way of an informal agreement between the grandparents and parent/s, then the parents come back into the children’s lives wanting to step back in as their primary carer. The grandparent may want to make a court order to seek a judgment on if the Court would consider that the children are at risk, and to formalize their arrangement to continue caring for the child or children.
How does a grandparent become the primary carer of their grandchild if it is in their best interest?
There are several things you can do if you are required to be the primary carer of a grandchild. The Department of Families is a state authority, the Family Court is federal. If you have concerned that children are at risk while they are with their parents, you can make a report to the state department and the state department will do a welfare check on the children. That is not an application to the family court, that’s an application to the State Court. But be aware that the Department will do its best to act in the best interest of the child to ensure that they are not at risk. They will do a check, as per their duty to check a report when one is made, and then they will put it on record as a report that has been taken seriously or one that they checked, and they didn’t think was valid.
These reports become relevant if you bring an application in the Family Court because you can subpoena those records. When someone make an application to the Court the Judge doesn’t know what the history is, so the best means of evidence that the Judge has is to look at the subpoenas, which is seen as an independent view of what the situation is, rather than relying on what either party is saying.
Ultimately if a child is at risk whilst living with their parents, and another family member or close contact is concerned about their welfare, the best thing to do is seek legal advice to establish the next steps to take to protect the interest of the child.
If a grandparent has had an informal agreement in place to care for the child, they may want to consider formalizing the arrangement.
To formalize an agreement like this it needs to be put in writing with both parents, getting consent orders, and registering it with the Family Court. This can clarify the arrangement in the eyes of the law and mitigate the risk of disputes arising down the track about the care of the children.
It really does come down to how effectively families can come to an agreement amongst themselves, and ensure they are putting the best interests of the child first and foremost.
If you are faced with this situation, what should you do?
Going to court should always be a last resort. It is stressful, extremely expensive, and you may not achieve the outcome you are hoping for. You can’t make any applications to Court, whether it is a parent or a grandparent, until you have gone through an alternative dispute resolution process. That means that you need to sit down with a dispute resolution practitioner and all parties involved will attempt to mediate and come to an agreement. If you reach an agreement, that agreement can be put in writing by way of a parenting plan or formal orders. A parenting plan is deigned to be more flexible than a formal order. The difference is that if there is ever a breach of the parenting plan, you can’t go to court to enforce the parenting plan. If an order is made and someone breaches it, you can commence contravention proceeds and have the other party brought before the Court.
Unfortunately for most family lawyers the experience is that the contravention proceedings don’t really achieve that much on first or second occasions unless someone continues to contravene. Ultimately, if you can reach an agreement with someone through mediation, without having to go to Court, that is the way the Court prefers you to work your matter out.
Under the new regulations of the Court, they require the parties to attempt to have mediation before you commence your proceedings. There are a couple of exemptions to this rule, one of them is when a domestic violence order is in place.
Hopefully, in most cases, when emotions settle, families can come to an arrangement that works for all parties and particularly will ensure children can maintain the meaningful and loving relationships they have with all family members.
Attwood Marshall Lawyers – helping you maintain positive family relationship
Our experienced family lawyers are dedicated to supporting families through their most difficult challenges. We understand that emotions run high when relationships break down, particularly when children are involved. We want to help families resolve disputes quickly and effectively so that everyone can move on with their lives.
We encourage all parties to try to discuss the matter in a calm and open way so that you can reach an agreement that is reasonable and something everyone can live with. Always keep in mind that the best interests of the child are what is most important and will ultimately determine the outcome of your matter.
If you are a grandparent or relative that has been cut off from a child that you once had a loving and positive relationship with and you want to find out what options may be available to you, it is important to get legal advice about your unique situation from an experienced family lawyer.
It is our intent to help families maintain positive relationships and provide exceptional client service and legal expertise that you can count on.
To discuss our family law services or get help with a family dispute you are involved in, contact Family Law Department Manager Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or call our 24/7 phone line on 1800 621 071. You can visit any of our family lawyers at our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney and Melbourne.
Read more:
Appointing someone as a guardian for your child in your Will is not binding in the Family Law Court – but it is a good way to indicate your wishes
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