24 Jan Do Grandparents Have A Right To See Their Grandchildren?
A breakdown of a family relationship can have devastating effects on the parents and the children. However, these effects will often also be felt by the extended family members such as grandparents, aunts, uncles, cousins. Unfortunately, grandparents are left out of the considerations by the parties to proceedings. So, what can a grandparent do to see their grandchildren following a separation?
Grandparents’ rights under the Family Law Act 1975
The fundamental position adopted by the Federal Circuit and Family Court of Australia is to make Orders that are in the best interests of the children. The Family Law Act says that the best interests of the children are met by ensuring that the children have a meaningful relationship with both parents, at the same time protecting them from any risks of harm.
The Act also recognises that children have a right to spend time with other people significant to their care, such as grandparents. However, the right is not reciprocal. There is no such right for a grandparent to see or spend time with their grandchildren.
What happens if I am not given an opportunity to spend time or communicate with my grandchildren?
The first thing you should do is talk to the children’s parents. If you are on speaking terms with one of the parents, try that avenue first. Explain to them when you would like to spend time with the children, for how long, where and the reason. Give them enough time to organise this. It may be that it is easier for a facetime call each week, which you can agree on a certain time and duration.
If you are not on speaking terms, you may consider inviting each of the parents to a mediation. You can explain your interests and hope to reach a resolution without costly litigation.
If mediation is unsuccessful, you may give some consideration to making an application to the Court for some time with your grandchildren. This can be a costly process, so you would want to receive some legal advice before embarking upon that option.
What sort of Application do I need to make?
You would need to make an application for a parenting order.
If you are seeking custody or an Order for the children to live with you, you would need to prove why the children’s parents should not be given that responsibility. Sometimes, parents may have their own issues – they may suffer from mental illness or drug addiction. If these issues are impacting their ability to parent the child, you may want to consider stepping in.
However, if the issue is limited to spending time or communicating, then a grandparent can still apply to a Court to have the time that you seek to be included in the parenting Order.
The child’s right to spend time with grandparents.
If you are wanting to make an application for a parenting Order to spend time with or communicate with your grandchildren, it is important to appreciate the factors that the Court will take into account before making any orders.
The right of a child to spend time with their grandparent is amongst many considerations that the Court takes into account in determining what is in the child’s best interests. Just because the children have a right to spend time and communicate with their grandparents, does not always mean that it will be in their best interests to do so.
The Court needs to balance the following considerations:
- the nature of the relationship between the grandparent and the children.
- the benefits to the children in facilitating the meaningful relationship with the grandparents.
- the need to protect the children from harm, neglect or abuse.
- the capacity of the grandparent to provide for the children’s emotional and intellectual needs
- the practical difficulty of facilitating the time or communication between the grandparent and the children.
How do I go about the Application?
It is really important that you consider the likelihood of the Court making such an Order before filing the Application.
FEDOROV Family Lawyers provide a free 30-minute consultation, and this can be an affordable option to consider your prospects. The lawyers at Fedorov Family Lawyers are experts in these types of matters and can draft the Orders, assist you with the preparation of the evidence and appear on your behalf at the Court hearings.
If you or someone you know needs some advice or some help repairing the relationship between a grandparent and grandchild, give Fedorov Family Lawyers a call on 1300 768 719 or fill in the contact form and we will get in touch.