Where does the law stand on a grandparent’s right to spend time with their grandchildren when the parents have cut off contact? Family Law Senior Associate Hayley Condon joins Robyn Hyland for ‘Law Talks’ on Radio 4CRB to deep dive into the position of the Family Court when it comes to deciding whether grandparents can have access to their beloved grandkids.
Introduction
There is no doubt grandparents can play a vital role in a child’s life. In an ideal family scenario, a grandparent can provide a larger support network to a child, share their wisdom and life lessons, instil important values, and be story tellers to the next generation. Most children cherish their relationship with their grandparents and being a grandparent is one of the most rewarding (and sometimes challenging) roles in a family.
There are many instances where grandparents step into the leading role and take on the long-term care of their grandchildren when the parents are unable to care for their child or have failed to protect that child from risk of harm or neglect.
In these circumstances, some parents may choose to hand over their responsibilities, asking a grandparent to take on the bulk of the caretaking, or to provide financial support such as paying school fees. There is also an increase in shared living arrangements with grandparents due to the high cost of homes and rentals, which is probably just something that was historically and culturally more prevalent in past years. The usual outcome of increased contact between grandparents and their grandchildren is a positive one, enriching the lives of all concerned.
On the other hand, there are also situations where parents may choose to stop a grandparent from seeing their grandchildren because of a family falling out or because they believe the relationship between grandparent and grandchild is not a positive one or one that is not in the best interests of the child or children.
In these situations, it is often asked if there is any legal recourse for grandparents who want to establish or re-establish a relationship with their grandchildren.
Grandparents do not have a right under Australian law to spend time with their grandchildren. As they hold no special legal position, it is up to grandparents to persuade the Court that it is in the best interests of the grandchild or grandchildren for their relationship to be maintained.
When both parents agree that their child or children should not have any contact with their grandparents, 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 to cease contact between their child or children and the grandparents.
While the views of the parents are significant, they are not necessarily determinative, and orders can be made for grandparents to have contact with their grandchildren depending on the individual situation of each family.
It all comes down to the best interests of the child
Grandparents are included as a specific class of person in Section 65C of the Family Law Act 1975 (Cth), who can apply for a parenting order in relation to a child. This means that if grandparents are being prevented by the parents from spending time with their grandchild or grandchildren, they can apply to the Federal Circuit and Family Court of Australia (“the Court”) for an order for contact with that grandchild or those grandchildren.
While grandparents have the ability under the Family Law Act 1975 (Cth) to apply for an order for contact with their grandchild or grandchildren, grandparents hold no particular priority, special position or right in respect of their grandchildren. They are also not ordinarily treated in the same way as parents when an order is made with respect to a grandchild or grandchildren.
The factors that are often considered by a Judge when determining an application made by a grandparent include:
- the level of involvement the grandparent has had in the life of the grandchild prior to their relationship ceasing.
- the reason behind the parents ceasing contact between grandparent and grandchild.
- the nature of the relationship between the parents and the grandparents.
- the views of the child, depending on their age and level of understanding.
- the child’s relationship with their parents and grandparents.
- the effect on the child if orders were made for them to spend time with their grandparents (including any impact a relationship between grandparent and grandchild may have on the parents and their capacity to parent the child).
- the capacity of the parents and/or grandparents to provide for the child’s needs.
Set out below are some case law examples that show the preparedness of the Court to order contact between grandparents and grandchildren when considering different family dynamics.
No relationship
If a grandparent has not met a grandchild, has not had contact with the grandchild for quite some time or is not significant to their care, welfare and development, it is unlikely the Court will make an order in the grandparent’s favour if they are seeking a legal solution to establish the relationship which is not supported by the parents.
This result was seen in the case Gaffney v Erikson [2011] FMCAFam 1177, where a maternal grandfather was unsuccessful in his bid to spend time with his 22-month-old grandchild. He’d had no relationship with the baby and the mother, his daughter, had cut him out of her life before the birth of the child. Her partner – and the baby’s father – supported her decision.
Toxic relationship between parent and grandparent
If the relationship between the parents and grandparent is hostile or toxic, resulting in the grandparent routinely speaking badly about or undermining the parents’ authority in relation to the child, it is unlikely that the Court will make an order in the grandparent’s favour to re-establish contact with the grandchild.
This was evident in the case of Hill v Misiti [2012] FMCAFam 1222. In this case, the grandmother had enmeshed the children in the conflict between her and their mother (her daughter). The Court considered that there was a need to protect the children from a risk to their psychological wellbeing, in particular the eldest child who had been subjected to the grandmother’s improper influence.
In this case the children were part of a caring and loving household with strong relationships with both parents and the Court found the decision of the parents to cease the children’s time with their grandparents was appropriate. Orders were not made for the grandparents to have contact with their grandchildren as the Court found that in light of the relationship between the grandparents and the parents, a resumption of the relationship between the grandparents and the grandchildren would most likely have a significant adverse impact on the household and the capacity of the mother to parent her children.
Limited contact
In some cases, if the resumption of a relationship between grandparents and grandchildren causes the primary carer severe stress and anxiety, which could adversely impact their parenting capacity and consequently the welfare of the children, then the Court may choose not to disrupt the status quo. This is determined on a case-by-case basis.
In the case of Sampson v. Jacks [2008] FamCA 176, a mother staunchly stood by her decision to isolate her parents from her children. There was medical evidence that if contact between the children and the grandparents, who had not seen each other for many years, resumed, it would be so distressing to her that it would negatively impact her relationship with the children, which had historically been a strong and loving one.
While the Court took that consideration into account, it still decided that the grandparents should have some contact with their grandchildren, gradually and initially supervised. The Court found that the grandparents could adequately provide for the needs of each child, and that it would have a negative effect on them to not have any association with their maternal family.
Deceased parent
Valentine & Lacerra and Anor [2013] FamCAFC 53 was a case that involved a grandmother (and the maternal aunt) seeking contact with the grandchild, following the death of the mother and the surviving parent blocking contact with the child.
In this case, the Court ordered the child to spend every third Sunday during school terms with the maternal aunt and grandmother, as well as extended periods during school holidays, after finding that the father’s decision to block contact with his in-laws after his wife died was not beneficial to the child. The Court found that the maternal aunt and grandmother were “significant” persons to the child as the child had lived in their household for periods of her life and had at times daily interactions with them prior to the mother’s death.
This case shows the preparedness of the Court to make orders in favour of grandparents, if they can show they previously had a significant and positive relationship with their grandchildren prior to their relationship ceasing.
The comments of Justice Benjamin in Church and T Overton & Anor [2008] FamCA 965, is illustrative in the writer’s opinion of the general view taken by the Court when it comes to considering the application of a grandparent for contact with a grandchild:
“The law is that parents are entitled to parent children. If a Court is satisfied that an approach to the upbringing of a child by a parent/s in whatever way is contrary to that child’s best interests, then the Court should interfere by putting in place appropriate orders. In the absence of substantive issues as to the child’s best interests, it is not the role of a Court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful, and thoughtful manner and consider whether a better approach is to make no order at all.”
“That is not to say that a parent who acts capriciously in isolating a child from a grandparent with whom the child had a meaningful relationship ought not to be subject of orders, nor should this derogate from the role of the many grandparents and relatives who have taken up the care of children in circumstances where the parents were unable or unwilling to care for them.”
Takeaway points
The recent decisions in this area suggest:
- Parents should primarily be entitled to parent their children.
- Grandparents hold no priority, special position or right in respect of grandchildren.
- If parents are part of an intact family and demonstrate an appropriate parenting capacity and have decided to terminate a relationship between their children and the grandparents, this decision should be respected unless it can be regarded as compromised or capricious and not in the best interests of the children concerned.
If parents and grandparents have fallen out for whatever reason, the grandparents have the more difficult task in persuading the Court that the parent’s decision not to permit them to spend time with their grandchildren should be overturned. In this instance, a grandparent seeking to resume contact with a grandchild should give serious consideration to trying to repair their relationship with their child, which may require support from a third party such as a family counsellor, to open the opportunity to resume a relationship with their grandchild as opposed to taking a litigious pathway to try and achieve their desired result.
Attwood Marshall Lawyers – Helping families maintain positive relationships
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