What are the rights of Grandparents?

What are the rights of Grandparents?

Grandparents are able to commence parenting proceedings in Court under Section 65C of the Family Law Act 1975 (Cth). Parties who can apply for a parenting order include:

1. Either or both of the child’s parents
2. The child
3. A grandparent of the child; or
4. Any other person concerned with the care, welfare and development of the child.

The Family Law Courts rely on social science that supports a child’s bonds and attachments that they make to people other than their parents.  A grandparent’s bond with their grandchildren can be deemed to be significant particularly if there has been a history of contact and the grandparents demonstrate a willingness and availability to spend time with their grandchildren.

Although not a common application, circumstances may give rise to a parenting application to be brought by a grandparent which can include:

1. If the grandparents have previously had a close relationship with the children and the parents have prevented contact;
2. If the parents do not have the capacity to care for the children; or
3. If there has been a death of the parents or if they are incarcerated and the grandparents seek to have parenting orders made.

In our experience, the Family Law Courts will make provision for grandparents to be heard in an application to seek parenting orders, however, the grandparents time with the children cannot and should not interfere with a parent’s time with the children to such an extent that it would not be in the best interest of the children. The paramount consideration of the Family Law Courts when making a parenting order is that regard must be had to the best interests of the child.

The Family Law Courts must consider the primary considerations and additional considerations to determine what orders will be in the children’s best interests.  Section 60CC(3)(b) provides that the Court must consider the nature of the relationship of the child with other persons including any grandparent.  The specific mention of grandparents demonstrates the Family Law Courts requirement to consider the child’s relationship with their grandparents, noting this is a consideration that occurs after the primary considerations of the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

So, what types of orders can be made in favour of grandparents?

The Court is able to make any parenting order that it would ordinarily make for a parent, such as:

1. For the children to live with them;
2. For the children to spend time with them, either during the week or on weekends;
3. For the children to communicate with them through telephone or electronic means.

The first step in having arrangements made between grandparents and grandchildren is for a discussion to occur between the parents and the grandparents.  This can be an informal process where no formal documents are required.  Alternatively, the parents and grandparents can attend mediation with a professional service who can assist in the preparation of a Parenting Plan that provides some parameters of contact between the grandparents and the grandchildren.  If these steps are unsuccessful, and no agreement can be reached, then the only other option is for the grandparents to commence parenting proceedings.

If you are a grandparent and would like to understand your rights in relation to spending time with your grandchildren, contact Lewis Family Lawyers today.