This article is about grandparents and contact with their grandchildren, when the children’s parents separate. It does not relate to grandparents who have had grandchildren living with them and who have been the child’s primary caregiver in place of a parent.
When a family separates and children are involved, there is naturally a lot of focus on how much time is spent with each parent. Of course, this is where the focus should lie, but we also know as modern families have evolved, commonly, grandparents are very involved in their grandchildren’s lives, often having fulfilled a caregiving role to the children and a supportive role to the parents. Separation can mean that the role of the grandparent changes dramatically or their ability to see their grandchildren can be severely impacted.
In this article we explore what rights grandparents in Australia have to see their grandchildren following a breakdown of a family. It is important that grandparents are seen to approach their role in a supportive way remembering always, that the primary relationship is between child and parent. It is extremely important that grandparents do not seek to undermine the role of the child’s parent or the relationship between child and parent.
Section 60B of the Family Law Act says “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).”
Concerns grandparents have about access to their grandchildren
For grandparents who have children going through a separation, one of their biggest concerns is whether they will be cut off from their grandchildren and their once frequent contact with their grandchildren will be greatly reduced and so the close and loving relationship they have with their grandchildren will diminish. This is particularly the case in situations where one party wishes to relocate with a child a significant distance away from the other parent and of course, the grandparents.
It is possible for grandparents to make an application for parenting orders (usually spend time with orders) in the Federal Circuit/Family Court or to be a witness in the case of their adult child to provide supportive evidence about their role in the child’s life and on matters of relevance to the court about the child. Some grandparents are often called upon to perform the role of a supervisor in cases where one parent cannot spend time with the child without another adult present for reasons such as drug or alcohol abuse or in matters where other serious allegations are being made but it is agreed that the child should have some supervised time with this parent.
Some of the most difficult cases are those where the parents are still in a relationship and or separated and they BOTH oppose the child spending time with their grandparent. These cases are often fraught with very difficult family dynamics which have developed over a long period of time, usually throughout the life of the adult parent.
However, in all of these matters, what is in the best interests of the child is still the major (paramount) consideration. The court has an obligation to protect the child from family violence, exposure to family violence risk or harm. The court considers and examines the nature of the relationship between the child and grandparent , the nature of the relationship between the parents and the grandparent as well as all the other relevant factors set out under section 60CC of the Family Law Act. The court respects the primary relationship between child and parent and is very careful about “splitting” a child three or four ways when a child’s relationship with a grandparent post separation may well be fostered and maintained during periods the child spends with the parent of the child, rather than in addition to those periods. Every case is different and the history of the grandparent’s involvement in the child’s life is extremely important to the outcome.
What to do if you are concerned about your ability to spend time with your grandchildren
If you are concerned about your ability to spend time with your grandchildren, the most important thing is that you focus on the best interests of your grandchildren.
It is your responsibility to be a calm presence in their life. Ultimately you should work towards minimising any type of conflict and try to work constructively with both parents to get an agreeable outcome that suits everyone involved. Be confident in understanding that the Court will recognise the importance of your relationship with your grandchildren.
If you want to make an application to see your grandchildren, you will have to do all the things parents are required to do, such as Family Dispute Resolution.
If you do go down this path, we recommend you don’t delay this process and get the wheels in motion as soon as you can. Because to get in to see a Family Dispute Resolution practitioner can take weeks and even months. Booking in to see a practitioner is the first thing you should do and if you are concerned about the safety of a child then you should arrange to meet with a family lawyer and seek advice. As experienced professionals, we can connect you with family dispute practitioners, and locate one who would best fit your particular situation.
You should also get advice before you undertake the Family Dispute Resolution. It is important to do so because we can inform you of the specific types of arrangements that are recognised by the Court as being appropriate and in a child’s best interests.
We can also give you advice and help you work out a proposal to give to the children’s parents, having regard to the nature of the relationship that you have with your grandchildren and the history of your involvement in your grandchild’s life. Because all of these things are relevant to the outcome.
Calm, rational negotiations are the ideal solution but if there is no outcome by the dispute resolution process we can assist you with making an application to the Court.
DDCS Lawyers specialise in all aspects of family law and can provide advice relating to seeking time with grandchildren, the process of Family Dispute Resolution or to make an application to the Court. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
