Separations and divorces can be highly stressful when there are young children involved, not only for the parents and the children themselves, but also for the wider family unit.
Grandparents often play a significant role in the early years of their grandchildren’s lives but grandparents’ access to see their grandchildren can be impacted by several factors including:
1. Separation and divorce;
2. Family violence;
3. Disagreements between grandparents and their children;
4. Issues with drug and substance abuse involving grandparents’ children; or
5. Mental illness of grandparents’ children.
The issue of grandparents’ rights is not often discussed but it is important for grandparents to understand their rights if they find themselves in a situation where they are being prevented from seeing their grandchildren.
The Family Law Act recognises the importance of children spending time and communicating with “both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.
Although grandparents do not have an automatic right to spend time with or care for their grandchildren, they can apply to the court for parenting orders to be made in their favour. This may be necessary where grandparents are being prevented from seeing their grandchildren or where the grandchildren’s parents are unwilling or unable to care for their children.
The court’s primary consideration when considering any application for parenting orders is always the best interests of the child. To determine this, the court will primarily look at (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The court will consider an array of additional factors, including the nature of the relationship of the child with other persons, including any grandparent or other relative of the child.
Recent case law
In the case of Valentine & Lacerra and Anor, the Full Court of the Family Court stated that applications for parenting orders made by non-parents are to be determined in the same way as applications made by natural parents are. That is, applications by non-parents are to be determined according to the circumstances of the matter and with the best interests of the child as the paramount consideration. The court also said that there is no presumption in favour of a natural parent when considering a child’s best interests, although the fact of parenthood is a significant factor.
In Batista & Marston & Ors, the court ordered that a boy, aged eight, live with his paternal grandparents and that the paternal grandparents have equal shared parental responsibility with the child’s mother. It also ordered that the child spend overnight time with the mother and supervised time with the father. The father had exposed the child to his use of illicit drugs. The child had spent considerable time in the paternal grandparents’ care and had formed a strong bond with them.
In Minett & Anor & Branson, the court ordered that a child, aged 10 at the time, live with his maternal grandparents and spend time with his father. The court ordered that the father and maternal grandparents have equal shared parental responsibility. The child’s mother had been ill for most of the child’s life and had passed away when the child was eight years old so he had spent much of his childhood in the care of his maternal grandparents.
In Koster & Dowd & Ors, in relation to a child aged three and a half at the time, the court ordered that the father have sole parental responsibility and that the child spend time with the maternal grandparents. The mother had a long history of poor mental health and had suffered drug induced psychosis.
If you are a grandparent wanting greater access to your grandchildren, the first step is always to attempt family dispute resolution and/or negotiation with the child’s parents. If you are wanting to know more about your rights to see your grandchild or grandchildren, please contact Rowan Skinner & Associates Lawyers for further advice.