Article by Brooke Mallard
It is often asked what ‘rights’ grandparents have, if any, to spend time with their grandchildren; It is a common misconception that grandparents have ‘parental rights’ to see their grandchildren and/or make decisions for them.
During times of separation or times of conflict, many grandparents find that their relationship with either the co-parent of the relationship, or the grandchildren, breaks down. It may be a situation where a grandparent has exercised some level of parental responsibility for a period of time or has been regularly spending time with the grandchildren, which has now ceased. This can be a difficult and often confusing time for both the grandparent and the grandchild.
The court recognizes that grandparents are generally people significant to a child’s upbringing. Under section 65C of the Family Law Act 1975 (Cth) (‘FLA’), a parent, the child or grandparent or any other person ‘concerned with the care, welfare or development of the child’ may issue child-related proceedings. This means that grandparents can file an application at court to seek parenting orders, including orders to spend time with the grandchildren.
The court will only consider an order for grandchildren to spend time with the grandparent if it is in the best interests of the child. This extends in so far as making an order for the grandparent to have ‘parental responsibility’ of the grandchildren, if necessary.
Some factors that the court considers when determining whether an order is in the best interests of the grandchild, include, protecting the child from physical or psychological harm, any views expressed by the child, relationship with the child, the likely effect of any changes in the child’s circumstances, practical difficulty and the capacity of the parent.
In the case of D & F , the court placed particular emphasis on the ‘factor of parenthood’. The court examined in what circumstances ‘parenthood’ should have greater or lesser weight in determining whom a child shall spend time with. It was noted that if there is no relationship between a child and parent, the factor may have little weight. However, it may be very significant in a dispute between a ‘capable parent and a more capable grandparent’. In any event, it was found that whilst parenthood may be considered by the court, parents do not have greater rights than non-parents in family law proceedings.
Our family law team are regularly consulted by grandparents, and other persons who play important parenting roles, who are seeking to establish or maintain a meaningful relationship with their grandchild or grandchildren. Should you wish to discuss your options as a grandparent, or parenting matters in general, please contact Mr Anton Richardson of our office on (07) 5619 5933.