In 2006, the amendment in the Family Law Act 1975 (the Act), gave importance to the relationship between grandparents and grandchildren. Apart from this, it also recognised various rights of grandchildren including their right to meet their grandparents.
This amendment has created change in Family Law. The amendment focuses to resolve issues in a circumstance, where grandparents are unable to spend time with or communicate with their grandchildren after the separation or divorce of the parents of such grandchildren.
If you are a grandparent and you are concerned about your grandchild’s well-being, then this article will help you to understand different laws concerning your right as well as inform you of the legal options available.
Right to Spend Time with and Communicate with Grandchildren
The Act states that children have a right to spend time and communicate on a regular basis with their parents and also with the extended family members including grandparents. However, grandparents do not have an automatic right to spend time with their grandchildren. Such situation arises due to the divorce or separation of the grandchildren’s parents. In such circumstances, grandparents may put forward an application before the Court on the grounds that they are concerned about the well-being of the children. Whether to refuse a relationship between the grandparents and the grandchildren or to pass Orders for the grandchildren to spend time with their grandparents is decided by the Court taking into consideration the best interests of the children.
One of the common ways to maintain your relationship with your grandchild is by Parenting Plans. Parenting Plans are not binding or enforceable in the Court, but due consideration is given to such methods if the matter ends up in the Court. The other alternative is Parenting Orders.
At first, you should try to seek an agreement with the parents to make arrangements for spending time with your grandchildren. You can also seek assistance from a Family Relationship Centre. All parties will be invited to attend a mediation session and if an agreement is reached, you can enter into a Parenting Plan. Such plans can also be written down in an agreement form and be registered in the Court. If the parents do not agree to this plan or agreement, then you have the option to apply to the Court for Parenting Orders. You can do this by filing an application to the Court with a supporting Affidavit.
The Court after taking into consideration the best interests of a child will take a decision on the following issues:
- Where the child will live;
- With whom the child will spend time;
- Who will be the primary caregiver of the child;
- The mode of communication; and
- Any other aspect of the child’s care, welfare, and development.
Apart from the exceptional circumstances, the parties must attempt mediation before making an application before the Court.
Case Law
In Cowles & Cowles & Madden (2008) FMCAfam 1091, the maternal grandparents had been taking care of their grandchildren and were supporting their daughter for a good amount of time. Meanwhile, the daughter got involved with a partner having a long criminal history. Thus, the life of the grandchildren became disturbed as they were not being sent to school on a regular basis. In order to protect the interests of the children, the grandparents went to Court and requested to make such Orders so as to save their grandchildren’s future. The Court considered all the facts of the case and ordered that the children be sent to the grandparents’ house and spend only alternate weekends and half holiday periods with their mother.
Feel free to contact our team of experts at Owen Hodge lawyers for more details.