It’s a sad state of affairs but the number of marriages that ultimately fail remains high. Amid the turbulence after a separation or divorce there are plenty of people that are caught in the crossfire, in particular the grandparents. A question that is often asked by them is “what about my rights to see my grandchildren?”
In this podcast, Hayley Condon, a family lawyer from Attwood Marshall Lawyers discusses the topic.
Dan: Hayley, what’s the position in this regard?
Hayley Condon: Well, Dan, the first question that a grandparent needs to ask themselves is what has happened in terms of the relationship between themselves and their own child as to why they’re not spending time with their grandchildren anymore?
Dan: Is it the case that the mother and father or the spouses weren’t talking and there was just sort of standoff in relation to, the child’s not going to your place this weekend, so therefore they can’t see your family et cetera, et cetera. Does that impact upon the right or for want of a better word, of the grandparent in this whole scenario?
Hayley Condon: Well in that particular scenario, in would really be an issue for the relevant parents and to deal with that before the court as to why a child is not able to spend time with that particular parent’s extended family. Insofar as the grandparents are concerned, where perhaps their child is not allowing them to spend time with their grandchildren, grandparents are eligible under the Family Law Act, to bring an application before a Family Law Court in terms of orders regarding their grandchildren and in particular spending time with their grandchildren.
When courts make orders in terms of children, the paramount consideration is what is in the best interest of the children. Therefore, the court would consider what type of relationship that the child has with their grandparent, and whether there could be any emotional harm to the child if their relationship with their grandparents ceased.
Dan: It’s not the case that the courts go, all of a sudden, we’ve now got a grandparent in the court who’s jumping up and down saying, “What about my rights?” The court’s not really interested in their rights, it’s more about is this in the best interest of the child or children? That’s the case, is it?
Hayley Condon: That is exactly the case, Dan. Really it’s the rights of the child to spend time with parents, grandparents or any other person who is concerned with their care, welfare and development. Obviously, the relevant parent or grandparent needs to institute those proceedings before the court to seek orders if they’re simply not able to resolve matters by consent through negotiation with the relevant parties.
Dan, what I do really want to impress upon parents and grandparents is that court is a very stressful and emotional … And not to forget an extremely costly process, and it effects both parents, children and extended family. Before a grandparent, unless exceptional circumstances apply, is able to bring an application before a family law court, they are required to participate in what’s called Family Dispute Resolution Mediation. This is a step which a court requires, prior to proceedings being brought because what the court is trying to do is really encourage the relevant parties to try and sit down and negotiate these issues and reach an agreement where everybody is comfortable and it’s more likely to be stuck to, rather that commencing proceedings which can arguably destroy relationships for the future, depending upon what happens.
Dan: Yeah, it just makes so much sense, doesn’t it? I suppose this is why people should be seeking some legal advice in the front end, before they try and sort of deal with this stuff themselves.
Hayley Condon: Yes they should, Dan. It’s always advisable for grandparents or parents if they find themselves in a situation where they’re having difficulties spending time with children, to obtain legal advice beforehand. That way they know what their options are and what is the best approach to take, not only to try and rebuild relationships, but also to put parenting arrangements in place which are in the best interests of the children concerned.
Dan: Hayley, thanks for joining me.
Hayley Condon: Thank you, Dan.