When a marriage or relationship breaks down and involves children, the grandparent’s rights are often affected, and at times forgotten. Grandparents can play a significant and active role in a child’s life, and in some instances, they may be the child’s main carer. If you are unsure of the rights of grandparents to see or care for your grandchildren in Australia, we can help by simplifying the laws for you.
Rights of Grandparents to See Their Grandchildren in Australia
Under the Family Law Act 1975, a grandparent is the parent of a child’s mother or father. They can be a biological grandparent and in some cases, a non-biological grandparent. Section 60B of the Family Law Act outlines that a child has the right to spend time and communicate with both parents and others significant to their care, welfare and development. The Act explicitly includes grandparents in the category of people a child should maintain contact with. Having said that, when a relationship breaks down between the parents, this does not mean grandparents have an automatic legal right to contact or care for their grandchildren, as the right lies with the child. Ultimately it depends on the child’s best interests and what limitations the parents place on the grandparents.
The Child’s Best Interests
When the law refers to the rights of grandparents to see their grandchildren in Australia, the court will look at whether the relationship is in the best interests of the child. Section 60CC of the Family Law Act, the court will refer to various factors, including:
- The benefit of the child having a relationship with their grandparents;
- The need to protect the child from physical or psychological harm;
- The nature of the relationship between child and grandparent;
- The capacity of a grandparent to provide for the child’s emotional and intellectual needs;
- The likely effect of change on the child; and
- The practical difficulty and expense of the grandchild spending time with and communication with a grandparent.
Grandparents have a right to benefit from the relationship with their grandchildren so long as it is in the best interests of the child.
Grandparents and Court Orders
While it is clear that the rights of grandparents to see their grandchildren in Australia can be achieved through the court, there may be instances where a grandparent may have to go one step further and apply for parenting orders.
A parenting order is a set of orders made by the court regarding certain parenting arrangements for a child. This order can be made based on both parents and grandparents agreeing to the arrangement (consent orders). It can also be made be if the parents prevent the development of a relationship between the grandparents and grandchild. Issues dealt within a parenting order include:
- Where the child lives;
- How much time the child spends time with parents and grandparents;
- The allocation of parental responsibility;
- How the child communicates with other significant people they do not live with; and
- Any other aspect of the child’s care, welfare or development.
Mediation Before a Court Application
Although the Family Law Act does outline the rights of grandparents to see grandchildren in Australia through court orders, our team suggest attempting to solve any issues through mediation first. Court applications should be used as a last resort if other options like mediation or family dispute resolution have failed to work. Before any applications can be made to the Court, there must be evidence that all parties have attempted to resolve the matter through mediation or family dispute resolution. The exception to this is if there is a matter of urgency or a risk of harm to the children. At Emerson Family Law, we have a team is trained in Family Dispute Resolution Practitioner (FDRP) and can help you resolve your issues without attending court.
Still Have Questions About the Rights of Grandparents to See Their Grandchildren in Australia?
If you’re a grandparent and you want to learn more about the rights of grandparents to see their grandchildren in Australia, we can help. Whether you are after shared responsibility, custody or visitation rights, our team of family lawyers are highly experienced in all children’s matters. Get in touch to speak to one of our lawyers by calling (07) 3211 4920.