Grandparents and Family Law Rights

When one thinks of parenting arrangements and family law, it is usually from the context of one parent of the children. However, it is not only parents that have rights in relation to parenting arrangements.

The Family Law Act 1975 (Cth) which governs family law in Australia includes specific reference to grandparents in relation to parenting orders. In fact, the Act goes as far to state that any person concerned with the care, welfare or development of the child can issue court proceedings for a child in the Federal Circuit and Family Court of Australia (“the Court”).

When determining parenting arrangements for a child, the Court has the responsibility to determine what parenting arrangements are in the best interests of the child. Amongst the numerous factors the Court will consider are the following:

1. The nature of the child’s relationship with their grandparent;
2. The likely effect of any changes in the child’s circumstances upon their relationship with their grandparent;
3. The capacity of the grandparent to provide for the child’s needs.

Fortunately, grandparents are often able to maintain their relationships with their respective grandchild within the time that their respective child, as the mother or father, enjoys with the child.

But there are sadly some circumstances where grandparents are unable to do so, such as the following:

1. The mother or father are unable to spend time with the child;
2. The mother or father are unwilling to spend time with the child; or
3. The mother or father do not have the capacity to spend time with the child.

In any of the above circumstances, the first step for the grandparent/s is to try mediation to arrange a suitable parenting arrangement for the child, unless it is inappropriate to do so. If mediation is unsuccessful, then a grandparent is able to issue court proceedings. Should this be necessary, the Court will consider numerous factors including but not limited to the following:

1. The need to protect the child’s physical or emotional safety;
2. The nature of the child’s relationship with their respective parents;
3. The likely effect of any parenting changes for the child; and
4. Any views of the child, if they have the relevant maturity.

Generally, it is only when the Court can determine that it is not in the child’s best interests for them to remain with their parent, that custody is granted to a grandparent in the alternative. That said, it is possible for a grandparent to obtain court orders providing for them to spend time with a child, while the child remains living with their respective parent/s. Again, the primary consideration for the Court to determine is what is in the child’s best interests.

If you are a grandparent who would like advice in relation to spending time with or seeking custody of your grandchild, then please contact one of our family law team who can provide you with tailored advice for your specific family situation. Alternatively, head to our website and book an appointment online today!

reception@wvblawyers.com.au

(03) 5623 5166