In some families, a grandchild may live with a grandparent or a grandparent may be part of a child’s household. In other families, a grandparent may see their grandchild a few times a year on special occasions. In many families today, grandparents care for their grandchildren while their parents work as the result of the high cost of living and child care expenses.
Regardless of the situation, the time grandparents and their grandchildren spend together often results in a lifelong special bond.
So what happens when separation hits the family? Most separating parents can work out arrangements in relation to whom their children will live with and spend time with, and grandparents are often factored into the equation. However, what happens in the situation where the family conflict escalates to a stage where grandparents no longer see, or are not even able to communicate with, their grandchildren?
Do grandparents have rights?
Yes and no. The Family Law Act 1975 provides that only children have rights under the Act, so any reference to parental rights or grandparents’ rights is not accurate.
However, the Family Law Act 1975 allows grandparents to apply for orders in relation to a child, and specifically considers grandparents when looking at what orders are in the best interests of a child.
The Family Law Act 1975 provides that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development, including grandparents.
In addition to the legislation, there is also growing case law in this area.
What happens if a grandparent is denied from spending time or communicating with their grandchild?
Grandparents can make an application to the Family Court of Australia or the Federal Circuit Court of Australia to obtain orders for their grandchild to live with them, spend time with them, or to communicate with them.
However, before resorting to Court, it is necessary to follow certain procedures to attempt to resolve the dispute. Not only is going to Court a stressful, lengthy and expensive process, but the Family Law Act 1975 requires people to attend family dispute resolution before making an application to the Court for orders unless there are exceptional circumstances.
What is family dispute resolution?
Family dispute resolution is where an independent professional attempts to help people affected by separation to resolve their dispute. Family Relationship Centres provide a cost effective way to access a family dispute resolution professional, although there are a number of private family dispute resolution practitioners available.
If family dispute resolution is successful, time you can spend with your grandchild or ways you can communicate with them can be outlined in a Parenting Plan or registered by the Court in the form of Consent Orders.
If no agreement can be reached, the family dispute resolution practitioner will provide a certificate which will allow you to make an application to the Court for orders in relation to your grandchild.
What does the Court consider?
In deciding what order to make in relation to a child, the Court regards the best interests of a child as the paramount consideration.
The Court determines what is in a child’s best interests by reference to the primary and additional considerations.
The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.
The additional considerations include the views of the child, family violence, and each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. Other additional considerations specific to grandparents include the nature of the relationship between the grandparent and their grandchild, the likely effect on the child of any separation from a grandparent, and the capacity of a grandparent to provide for the needs of the child, including emotional and intellectual needs.
The Court may appoint an Independent Children’s Lawyer to represent your grandchild’s interests. That lawyer’s role is to form an independent view of what is in your grandchild’s best interests and to inform the Court of those interests. The Court can also order a Family Consultant to interview your grandchild, the parents and you, and prepare a Family Report for the Court.
What is involved in the Court process?
Before making an application to the Court for orders it is important to obtain legal advice. The Court process can be lengthy, complex and stressful.
There are a number of documents which will need to be filed at the Court, which may include an Initiating Application (the orders you seek), an Application in a Case (the temporary orders you seek) and affidavits (the evidence supporting your case).
There are also a number of Court events to attend, and these may be numerous before you reach a final hearing or trial. It is also likely that you will need to attend sessions with a Family Consultant (counsellor) and possibly engage in various other forms of non Court based interventions.
If your matter does not resolve throughout the process, there will be a hearing before a Judge and the Court will then decide what is in the best interests of your grandchild.
If you are concerned that your relationship with your grandchild has been affected by separation do not delay in seeking advice from Sarah Bevan Family Lawyers Sydney.
Our family law specialists are able to assist in providing advice to help you continue to have a relationship with your grandchild.