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Parenting Orders for Grandparents

Doris Matias
Senior Associate

Posted on 06/02/2020, Last Updated on 23/04/2020

 

60-Second Summary

Grandparents may not always be aware that they can apply to the Family Court for Orders that their grandchildren live with or spend time with them.

It does not matter if the parents of the children are together or separated – the legislation permits such an Application. In fact, grandparents are specifically mentioned in the Family Law Act (1975) and the Family Court Act (1997) and the law acknowledges the importance of children having a relationship with their grandparents.

The rights of the children will prevail above all others and the Court’s approach is clear in that their ‘best interests’ are the primary consideration.

 

“I don’t see my grandchildren, what can I do?”

Are you a grandparent who has cared for or raised your grandchildren? Are you a grandparent who is concerned about your grandchildren’s safety? Are you a grandparent who has been prevented from seeing your grandchildren and would like to know what you can do about it? Then read on….

 

Who may apply for parenting orders?

Section 65C(ba) of the Family Law Act 1975 (“Cth”) (“the Act”) provides for grandparents or any other significant person (such as immediate relatives like aunts and uncles) who are concerned with the care, welfare and development of the children, to seek Orders from the Family Court facilitating the continuation of their relationship with the children if this has been ceased as a direct result of the parents’ separation, or as a result of a strained relationship with the parents.

This means that the Act recognises the importance of grandchildren having a relationship with their grandparents regardless of whether the children’s parents have separated or continue to be in an intact relationship.

It does not matter if the parents of your grandchildren are together and their relationship has not broken down – as long as you are a grandparent whose relationship with your grandchildren is suffering due to your having no contact, then it is open to you to apply to the Court for Orders to spend time with them.

Put simply, grandparents have standing to apply to the Court on their own merit because of their immediate relationship to the children. They can bring an application to the Court for a parenting Order either as an Applicant initiating proceedings under Section 69C(2)(c) of the Act or even as a Second or Third Respondent seeking leave to intervene in a parenting dispute.

The right to apply provided to grandparents in the Family Court is very distinct from any entitlement they may think they have. It does not necessarily follow that grandparents have an automatic right with respect to their grandchildren as the “best interests of the child/ren” under section 60CA remains the paramount consideration which the Court needs to take into account after considering all the relevant factors involved in a particular case.

 

How else are grandparents recognised?

The Act has provided the following mechanisms for grandparents to utilise should they consider becoming involved in a parenting dispute concerning their grandchildren.

Grandparents can be allocated parental responsibility for their grandchildren if such Orders are made by consent. This is possible pursuant to Section 65G, which permits the assignment of major long-term issues involving decisions such as the children’s health, education, religion, change in name etc, to the grandparents.

In practical terms, parents and grandparents can achieve this by filing a Form 11 Application for Consent Orders. However, this does not occur readily, and an explanation by way of Affidavit evidence would need to be supplied to the Court to provide further information in addition to the requirement under S65G(2) that all parties have attended a conference with a Family Consultant to discuss the matter, or the Court is otherwise satisfied that there are circumstances that make it appropriate to grant the order.

  • Grandparents can participate in negotiating a parenting plan. This is provided for in Section 63C(2A).
  • Grandparents can also be referred by the Court to participate in Dispute Resolution, Family Counselling or other family services under section 13C.

 

What Orders to apply for?

Examples of Orders grandparents can seek in the Family Court include:

  • “Spend time” or residence/live with arrangements with grandchildren;
  • Telephone and communication time (including video calls) with grandchildren;
  • Guardianship of grandchildren.

 

What to consider when you apply?

When you apply in the Family Court, you need to give evidence as to the following:

  • Your personal/financial/employment circumstances;
  • The history of your relationship with your grandchildren;
  • The nature of the breakdown of your grandchildren’s family; and
  • The nature and wishes of the children themselves, if age-appropriate.

 

When the Court considers an application by a grandparent, it needs to be aware of:

  • Any family violence towards the grandchildren or the parent, and if the grandchildren have witnessed this act;
  • Any criminal record of the parties;
  • Whether one or both parents have alcohol or drug addiction problems;
  • If one or both parents suffer from physical or mental health issues that may impact on the parent’s capacity to care for the grandchildren; and
  • If the Department of Communities, Child Protection and Family Support has been involved with the grandchildren due to Care and Protection concerns.

 

Children’s Best Interests

The grandchildren’s best interests are always the paramount consideration for the Court.

The Court will examine the evidence, apply the law and make findings of fact regarding the grandchildren having a meaningful relationship with their parents and grandparents but more important, is the need to ensure that they are safe and protected from harm, abuse, neglect and family violence.

Other issues that may impact a grandparent’s pursuit for time with their grandchildren include:

  • The degree of hostility and conflict between the grandparents and the parents’, including the likelihood of ongoing conflict between them;
  • The physical and emotional needs of the grandchildren;
  • The safety and welfare of the grandchildren;
  • If the grandchildren have sufficient maturity, then the wishes of the grandchildren;
  • The strength of the relationship between the grandparents and the grandchildren;
  • The grandchildren’s ability to adjust to new residences, schooling, and their community;
  • Any other considerations that the Court may consider relevant.

 

Get Expert Advice

We at DS Family Law take pride in offering comprehensive and cost-effective legal advice and representation covering all areas of family law, including parenting arrangements and parenting Orders for grandparents.

To find out if an application is appropriate in your situation and the likelihood of a successful outcome, please call us and we will be able to provide you with advice and information in this regard.

 

Let’s meet, and figure it out

For practical advice about what you should do next, please call to arrange a no-obligation initial consultation.