Grandparents’ Rights
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Grandparents can often be heavily involved in their grandchildren’s lives, and are often some of the most significant relationships a child has outside of their parents. We are sometimes contacted by grandparents wanting to know what their rights are in relation to their grandchildren, particularly when the child’s parents have separated or the grandparent’s relationship with their child has broken down.
Rights of a Grandparent
Under the Family Law Act 1975, nobody has a ‘right’ to spend time with, or care for, a child. This includes grandparents and the child’s parents. Rather, section 60CA of the Act outlines that there is one paramount consideration for the Court when making a parenting order: the best interests of the child.
What is in the best interests of a child is different in every case. Section 60CC outlines that there are two primary factors when considering the best interests of a child: the benefit for that child to have a meaningful relationship with both parents, and the need to protect the child from any harm. While nobody has a ‘right’ to spend time with a child, the act specifically mentions the child’s relationships with their parents as well as their grandparents, when appropriate.
The Best Interests of the Child
However, the Act also specifies other considerations for the Court to take into account. Grandparents are specifically mentioned as a consideration throughout the section, including:
S60CC(3)(b): the nature of the child’s relationship with other persons, including grandparents;
S60CC(3)(d): the likely effect of any changes in the child’s life, including separation from grandparents with whom they have been living;
S60CC(3)(f): the capacity of any other person, including a grandparent, to provide for the child’s needs (including emotional and intellectual).
Other than these specific sections mentioning grandparents, a child’s relationship with their grandparents is also often relevant when considering the child’s views and wishes, and may be particularly relevant when the child identifies as Aboriginal or Torres Strait Islander.
Applying for Orders as a Grandparent
Under s65C of the Family Law Act, parenting orders can be applied for by either parent, the child themselves, another person concerned with the welfare of the child or a grandparent.
In summary, the Court will always make orders that it feels are in the best interests of the child in that particular case. While grandparents do not have an automatic right to see their grandchildren, they are recognised in the legislation as significant people in a child’s life and an important consideration for the Court when making Orders.
FAMILY LAW ADVICE
You deserve to know your legal rights and responsibilities. We will guide you through the process every step of way, ensuring that not only are all potential outcomes discussed but also advice where it is relevant for your unique circumstances. You can rely on our expert family lawyers at Mornington Family Lawyers for a wide range of legal services. We offer sound advice and practical solutions tailored to your needs, whether you’re dealing with simple or more complex cases. We have experience in all family law matters and have helped many clients resolve their matters.
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WHAT YOU SHOULD KNOW
INFORMATION ABOUT PARENTING ARRANGEMENTS
Who cares for the children after separation?
Our lawyers at Mornington Family Lawyers can assist you to come up with an agreement as to which parent the children will live with after separation and how much time they will spend with the other parent. When making these decisions, parents are always encouraged to regard the children’s best interests as the paramount consideration. It is generally considered that a relationship with both parents is in the best interests of the children. If you and your former partner agree on who the children will live with and how much time they will spend with the other parent post-separation, you can enter a Parenting Plan and avoid the need to go to court. A Parenting Plan is not legally enforceable but can be finalised by way of Consent Orders filed with the Court. If you and your former partner cannot reach an agreement over parenting arrangements for your children, you may need to commence proceedings in the Family Court or Federal Circuit Court. This can only be done after you and your former partner have made a genuine effort to resolve the dispute through Family Dispute Resolution, if appropriate to do so. Mornington Family Lawyers can assist you to resolve your parenting matter outside of Court or through Court if necessary.
How much time will the children spend with each parent?
Who is responsible for making decisions about the children?
It is important to remember that parental responsibility is not impacted by the breakdown of the relationship between two parents. Both parents will continue to have what is known as ‘equal shared parental responsibility’ for their children under 18 years of age unless the Court says otherwise. By law, ‘parental responsibility’ refers to the legal obligations and duties which parents have for the care, welfare, and development of their children. This includes but is not limited to their education, health, religion, and living arrangements. This does not mean that both parents will have equal time with the children, but that they are required to consult each other and make joint decisions about major long-term issues regarding the child. It is not always easy for parents to share parental responsibility and to co-parent effectively in the wake of separation. There are circumstances where it may become necessary for one parent to make an application for sole parental responsibility, such as where there is family violence, abuse or high-level conflict between parents. Our lawyers at Mornington Family Lawyers understand this and can assist you to navigate shared parental responsibility post-separation or advise you on sole parental responsibility in certain circumstances.
What are the best interests of the children?
Wherever the Court is required to intervene in parenting disputes, its primary focus is the benefit to the child of having a meaningful relationship with both parents, subject to the need to protect the child from physical or psychological harm. It is generally in the best interests of the child to have a relationship with and spend time with both parents, save for extreme circumstances of physical, sexual, or psychological harm or abuse. Other factors taken into account when determining the best interests of the child include the child’s relationship with each parent and any extended family members, the willingness of each parent to facilitate the child’s relationship with the other parent, the likely effect that a change of circumstances will have on a child and in certain cases, the child’s own personal views. Our lawyers at Mornington Family Lawyers will assist you through any parenting dispute in a manner that ensures that the best interests of your child are always the primary consideration.
What is the process if to relocate with children?
Where one parent wishes to relocate either with the children or away from the children, this can make it difficult to maintain the children’s time with each parent. If parents have equal and shared parental responsibility, they should try to make a genuine effort to resolve the issue amicably between themselves. Otherwise, a parent may need to make an application to the Court to either get permission to relocate with the children or to prevent the other parent from relocating with the children. The most effective way to ensure that the other parent of your children does not attempt to relocate with your children is to make sure there are parenting orders in place which address the issue. If you wish to relocate with your children and cannot agree about relocating, you can apply to the Court for Orders to allow you to move. The Court will consider the best interests and welfare of the children before granting permission. Mornington Family Lawyers can assist you with finalising parenting orders. Otherwise, we can advise on the issue of relocation where there are no parenting orders or where you wish to relocate with your children in spite of orders.