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I want to see my grandchildren, what do I do?

Grandparents do have rights and are increasingly become part of family court proceedings as Applicants, Respondents and Intervenors (third parties with a recognised interest in proceedings). Grandparents can apply to the Family Court for Orders that their grandchildren live with or spend time with them. It does not matter if the parents of the children are together or separated.

The standing of a grandparent to apply in the Family Court, although permitted in the Family Law Act (1975) does not automatically guarantee that Orders will be made in favour of a grandparent.

Suppose you are a grandparent who has cared for or raised your grandchildren or are concerned about your grandchildren’s safety. In that case, the law acknowledges your role and the importance of children having a relationship with you. However, the children’s rights will prevail above all others, and the Court is clear that the focus will always be the children’s best interests.

Who may apply for parenting orders?

Section 65C(ba) of the Family Law Act 1975 (“Cth”) (“the Act”) provides for grandparents or any other significant person (such as immediate relatives like aunts and uncles) who are concerned with the care, welfare and development of the children, to seek Orders from the Family Court facilitating the continuation of their relationship with the children if this has been ceased as a direct result of the parents’ separation, or as a result of a strained relationship with the parents.

The Act recognises the importance of grandchildren having a relationship with their grandparents regardless of whether the children’s parents have separated or continue to be in an intact relationship. What this means is that it does not matter if the parents of your grandchildren are together, and their relationship has not broken down as long as you are a grandparent whose relationship with your grandchildren is suffering due to your having no contact – you can apply.

As grandparents have a pathway to apply to the Court for Orders to spend time with the children simply because of their immediate relationship as grandparents to the children, be warned that this will not be the only deciding factor. Put simply, your right to apply to bring an application to the Court for a parenting Order under Section 69C(2)(c) of the Act  is very distinct from any entitlement you may think you have. It does not necessarily follow those grandparents have an automatic right to their grandchildren as the children’s best interest under section 60CA remains the paramount consideration that the Court needs to consider after considering all the relevant factors involved in a particular case in line with s60CC.

Examples when grandparents are involved 

Grandparents can be allocated parental responsibility for their grandchildren if such Orders are made by consent. This is possible pursuant to Section 65G, which permits the assignment of major long-term issues involving decisions such as the children’s health, education, religion, change in name etc, to the grandparents.

This is achieved by filing a Form 11 Application for Consent Orders, but this does not occur readily, and an explanation by way of Affidavit evidence would need to be supplied to the Court to provide further information in addition to the requirement under S65G(2) that all parties have attended a conference with a Family Consultant to discuss the matter.

Grandparents can participate in negotiating a parenting plan. This is provided for in Section 63C(2A). If there is an agreement is reached, such agreement can be captured formally by way of Court Orders.

 The Court can also refer Grandparents to participate in Dispute Resolution, Family Counselling, or other family services under section 13C like any party in the proceedings.

What Orders to seek?

Some examples of Orders grandparents can seek in the Family Court are:

  •  “Spend time” or live with arrangements with grandchildren;
  •  Telephone and communication time (including video calls, facetime, skype) with grandchildren; and
  • Guardianship of grandchildren.

What you need to consider when you apply?

When you apply in the Family Court, you need to give evidence as to the following:

  • Your personal/financial/employment circumstances;
  • The history of your relationship with your grandchildren;
  • The nature of the breakdown of your grandchildren’s family; and
  •  The nature and wishes of the children themselves if age appropriate.

What the Court need to be aware of when grandparents apply:  

  • Any family violence towards the grandchildren or the parent, and if the grandchildren have witnessed this act;
  •  Any criminal record of the parties;
  •  Whether one or both parents have alcohol or drug addiction problems;
  • If one or both parents suffer from physical or mental health issues that may impact on the parent’s capacity to care for the grandchildren; and
  •  If the Department of Communities, Child Protection and Family Support has been involved with the grandchildren due to Care and Protection concerns.

How to consider the best interest of the Children

  • The grandchildren’s best interests are always the paramount consideration for the Court.
  • The Court will examine the evidence, apply the law, and make findings of fact regarding the grandchildren having a meaningful relationship with their parents and grandparents. More importantly, the need to ensure that they are safe and protected from harm, abuse, neglect, and family violence.

What other issues to consider?

  • The degree of hostility and conflict between the grandparents and the parents’, including the likelihood of ongoing conflict between them;
  • The physical and emotional needs of the grandchildren;
  • The safety and welfare of the grandchildren;
  • If the grandchildren have sufficient maturity, then the wishes of the grandchildren;
  • The strength of the relationship between the grandparents and the grandchildren;
  •  The grandchildren’s ability to adjust to new residences, schooling, and their community; and
  •  Any other considerations that the Court may consider relevant.

Summary:

Grandparents have standing in the Family Court. This is important to remember as increasingly parenting disputes in circumstances where grandparents are taking on the role of “parenting” their grandchildren when the parents are not able to or capable at the present time to care for their own children.

At the other end of the spectrum, there are also applications before the Court from grandparents insisting to have a relationship with their grandchildren when in fact and in practical terms, the relationship is distant, broken, estranged and unsafe.

The Court will always apply a balancing act and remain child focus in any decisions affecting the lives of children, including the important role that grandparents can play in children’s lives.

Next Steps:

Men’s Legal Service is a not-for-profit family law firm that charges ‘low bono’ rates to its clients around Australia.

Men’s Legal Service acts for grandparents in family proceedings regularly and can advise you on the methods and prospects of obtaining orders in relation to you grandchildren.

Our office also recommends to its client’s the inclusion of paragraphs that provide for contact for grandparents should either parent pass away during the children’s minority.

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