The role of a grandparent in a grandchild’s life is usually a vitally important one.
Many families often rely on their senior members for emotional, financial and practical support.
But what happens when families separate? Many grandparents forge strong relationships with their grandchildren and they may feel deprived when the family breaks up.
In some circumstances, grandparents may be prevented from continuing their relationship with their grandchildren. When this happens, do grandparents actually have any rights?
In a family breakdown situation, grandparents don’t have automatic rights to a relationship with a grandchild, but there are avenues that they can pursue if they have an ongoing relationship with the child or if they can show that they are concerned with the child’s care and welfare.
Whilst the Family Court usually deals with applications for parenting orders by either or both of a child’s parents, it is possible for grandparents (or any other person concerned with the care, welfare or development of a child) to apply for a parenting order. The Family Court may make such parenting order as it thinks proper.
The Family Court’s main objective in making a parenting order is to focus on the best interests of the child. The relevant statutory provisions state that in deciding whether to make a particular parenting order in relation to a child, the Family Court must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interests, the primary considerations that the Family Court must consider are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical, sexual and/or emotional harm (including from being subjected to, or exposed to, abuse, neglect or family violence).
There are also a number of additional considerations that the Family Court must consider, including: any views expressed by the child; the age and maturity of the child; the nature of the relationship of the child with each of the child’s parents and other relevant persons (including grandparents or other relatives); the likely effect of any changes in the child’s circumstances; the capacity of each of the child’s parents and any other relevant persons (including grandparents or other relatives) to provide for the needs of the child; the parental responsibilities demonstrated by each parent (or relevant person); any other fact or circumstance that the Family Court deems relevant.
Clearly, in the case of a grandparent, some of the considerations referred to above will not be relevant. The most relevant considerations that are likely to apply in any application for parenting orders by a grandparent will include: the need to protect the child from physical, sexual and/or emotional harm; any views expressed by the child; the age and maturity of the child; the nature of the relationship of the child with the grandparent(s); the likely effect of any changes in the child’s circumstances; the capacity of the grandparent(s) to provide for the needs of the child; the time that the child has been spending with the grandparent(s) and the bond that the child has with the grandparent(s).
Grandparents who apply for a parenting order are more likely to achieve a favourable outcome if they can show that their ongoing relationship with their grandchild will be in the child’s best interests.
Whilst the relevant statutory provisions that the Family Court must follow specifically recognises the importance of the grandparent/grandchild relationship in most situations, the legal process can be expensive, time-consuming and stressful. There is also no guarantee that an application will be successful, noting what has been set out above in relation to the primary and additional considerations that the Family Court must take into account.
The primary objective should always be to try to seek a satisfactory solution through informal processes, such as family dispute resolution/mediation, before embarking on the litigation process that can often be costly, stressful and take a long time.
In fact, the Family Court expects and requires people to try family dispute resolution before they can pursue the legal route in seeking orders relating to children (save for cases involving urgency or if family dispute resolution/mediation is not deemed appropriate).
In situations where agreement has not been reached at mediation (unless your situation is deemed unsuitable for mediation or your matter is urgent), or in situations where agreement has been reached with all other relevant parties, the grandparent(s) may then be able to make an application in the Family Court for parenting orders (by consent or otherwise).
An application for a parenting order can include:
- An order stating who the child/children is/are to live with, spend time with and/or communicate with (in addition to dealing with what is to happen on special occasions, holidays, etc);
- A location order (to locate a child who has been taken away);
- A recovery order (which makes provision for the immediate location and return of a child who has been wrongfully removed from their primary carer)
It is strongly recommended that any grandparent considering any application for a parenting order firstly obtains independent, professional legal advice from a family law lawyer. Failure to do so could result in an application being unsuccessful and potentially cost sanctions could apply.
In most situations, a child’s relationship with their grandparents is facilitated and promoted by his or her parents. However, circumstances do change and things happen which prevent grandparents from spending time with their grandchildren such as a marriage breakdown, difficulties between the parents and the grandparents or a death of one or both parents. When this happens, it then becomes incumbent on the grandparents to try and find a way of reaching agreement on how to continue their relationship with their grandchildren.
If you know of a grandparent who is concerned about their rights, you should talk to an experienced family lawyer like the team at Friedman Lurie Singh & D’Angelo for advice about their particular situation. With family lawyers based at each of their five offices in Perth, Jindalee, Joondalup, Rockingham and South Lake, they offer accessible, personal and efficient legal services across all areas of family law and you can contact them on 08 9254 0000 or through their website, www.flsd.com.au.