Law Talks Episode: When grandparents are cut off – what the law says and what you can do

Robyn: Good morning and welcome to another edition of Law Talks here on 4CRB where we discuss legal issues that matter to our community. For today, the theme is family law and grandparents’ rights.

One of the most heartbreaking situations for many grandparents is being cut off from their grandchildren. Whether it’s due to family breakdown, estrangement, or disputes with their children.

It’s a harsh reality, and emotions often run high. Some grandparents may feel they have no choice but to take legal action to be able to see their grandchildren.

But is court the best option? To help us understand the legal landscape and the best approach to maintaining relationships with grandchildren, I’m joined by Attwood Marshall Lawyers Family Law Special Counsel Hayley Condon, an expert in family law.  Welcome, Hayley.

Hayley: Good morning to you, Robyn, and good morning to your listeners.

Robyn: Hayley let’s start with the legal side of things. Do grandparents have any automatic rights to see their grandchildren if for some reason they have been cut off by the grandchildren’s parents?

Hayley: This is a question that is often asked, Robyn, but the short answer is, no. Under the Family Law Act, grandparents do not have a right to spend time with their grandchildren. Grandparents do not hold any special legal position under the law.

The Family Law Act, however, does recognise the importance of children having meaningful relationships with extended family, including grandparents, where it is in their best interests.

Grandparents are included as a specific class of person under the Family Law Act who can apply for a parenting order in relation to a grandchild.

However, it is important to remember that the court will only make an order for contact to occur between grandparents and grandchildren if that contact is in the best interests of the grandchildren.

It’s also important to mention that if the court does make an order for grandparents to have contact with their grandchildren, that grandparents are not ordinarily treated in the same way by the courts as parents when it comes to time arrangements.

So, they cannot expect the same level of contact with their grandchildren that a court might order for a parent. This is very relevant to how grandparents who have been cut off from contact with their grandchildren might choose to approach the matter of reestablishing that contact.

Robyn: So, if a parent decides they don’t want their children to have contact with a grandparent, does the court ever step in to override that?

Hayley: Well, that is a question that comes down to the facts of each case.

When both parents decide that their children should not have any contact with their grandparents or decide to restrict the grandparent’s access to their children, the court will generally respect the decision of the parents, particularly if the parents are part of an intact family, have appropriate parenting capacity, and have both agreed on the decision.

While the views of the parents are significant, the court has the power to make orders for grandparents to have contact with their grandchildren.

If the court forms the view that the relationship is beneficial for the grandchildren concerned and it is in their best interests for that relationship to be reestablished or for the contact to continue regardless of the wishes of the parents.

The primary consideration for the court is the safety, stability and wellbeing of the grandchildren involved.

Robyn: So, Hayley, we often hear about people who are willing to take their fight all the way to court, but is that the best approach?

Hayley: Robyn, I have certainly seen an increase in grandparents inquiring about pursuing court orders to have contact with their grandchildren, where their contact has been cut off.

The bond between grandparents and grandchildren is special, and being separated can lead to strong emotions and a desire to fight all the way.

But in most cases, litigation is not the way to go to resolve the matter. Litigation in the Federal Circuit and Family Court of Australia is time consuming, stressful and very costly and normally intensifies the conflict, rather than resolving it.

If grandparents are wanting to reconnect with grandchildren, then a suggested first step is to work on repairing the relationship with the parents of the grandchildren, being their child and the other parent, if that is who has stopped the contact.

Addressing the underlying issues that have led to family disharmony or conflict is often far more beneficial for the grandparents, parents and grandchildren.

Taking steps to resolve these matters typically results in more meaningful and lasting access to grandchildren than what might be achieved through a court order.

Robyn: Hayley, where can grandparents start if they want to try to repair the relationship with the child to avoid fighting it out in court?

Hayley: A recommended strategy is for grandparents to engage the parents in open and honest communication, to understand why the contact has been restricted or stopped.

There may be an issue for the parents that the grandparents are not aware of. This information allows any parental concerns to be addressed and resolved.

If that fails, family therapy is another valuable resource in these circumstances. Grandparents could seek professional support from a family therapist to resolve deeper conflicts with the parents and to work towards mending the relationships.

But if communication is not being productive, then the grandparents could consider inviting the parents to participate in family mediation. This is where an independent third party, normally experienced in family law matters, will facilitate discussions to find common ground and a compromise to avoid court litigation.

The Family Law Act does require parties to participate in what is called family dispute resolution before commencing court proceedings.

Robyn, it’s my experience that grandparents that try and resolve contact issues with grandchildren, through demands and threats of litigation to the parents, fuelled by emotion, which is completely understandable, rarely achieve their desired result.

Robyn: So, what does a court consider when making an order as to whether a grandparent should have contact with a grandchild?

Hayley: Robyn, these factors may include, firstly, the level of involvement the grandparents have had in the life of their grandchildren prior to that contact ceasing. The reason behind the parents ceasing the contact between the grandparents and grandchildren, the nature of the relationship between the parents and the grandparents, the views of the grandchildren, depending on their age and level of understanding. The grandchild’s relationship with their parents and with their grandparents. The effect on the grandchildren, if orders were made for them to spend time with their grandparents, such as any impact that relationship may have on the parents themselves and the capacity of the parents and the grandparents to provide for the grandchild’s needs.

Grandparents have a strong case for a court order where they had a relationship with their grandchildren and were having regular contact with them prior to contact ceasing, and there was no suggestion that the grandparents have been undermining the parents’ authority or causing conflict that impacts the emotional wellbeing of the grandchildren.

Robyn: So, Hayley, even if a grandparent has the money to fight this battle in court, they may not get the outcome they want?

Hayley: That is correct, Robyn. The court will not by default side with grandparents because they have decided to bring a court application as they are unhappy with the lack of contact with their grandchildren. It is all about what is in the best interest of the grandchildren concerned.

Robyn: Yeah, it’s been a very valuable discussion, Hayley. If a grandparent is struggling with this situation, where should they go for help?

Hayley: There are many dispute resolution services out there to assist families. The government funded services include Relationships Australia and the family relationship centre, but there are also private services available.

Identifying the appropriate pathway forward in any case is crucial, so a grandparent obtaining legal advice and referrals to a family therapist, or mediators will be of assistance early in the dispute.

The key point today, Robyn should be that people should not rush to court. Depending on the circumstances of your situation, there may be better ways to reconnect with your grandchildren and resolve the dispute.

Robyn: Yeah, great advice, Hayley. And I think as you said if you are a grandparent facing this particular challenge, remember that communication, patience, and family therapy are often the best path forward.

Thanks for joining us today, Hayley.

Hayley: Thank you, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.