Grandparents are playing a greater role in many families, often due to the high cost of childcare and increasing rates of divorce. But what happens when a grandparent is refused time with their grandchild or wishes to assume full care of a child? What are grandparents’ rights in these circumstances?
What the law says
The Family Law Act 1975 (the Act) recognises that significant persons in a child’s life (such as grandparents) have a right to a meaningful relationship with that child, and in certain circumstances may seek parenting orders through the Family Court.
A grandparent may seek an order:
- to spend regular time with the child, usually sought where parents have refused the grandparent any involvement with the child. Whether this will be granted depends on the circumstances, however the Court will generally award the grandparent less time than may be ordinarily awarded to a parent.
- for the primary care of the child, typically sought where parents may be unwilling or unable to care for the child. An order for a child to live with a grandparent (and for that grandparent to have sole parental responsibility for them) places them in an equivalent role to a parent and allows that person to make decisions for the child without the need to consult the parents
According to the Court, a child’s best interests are of paramount importance. The primary considerations in parenting applications are the:
- benefit of the child having a “meaningful relationship” with both parents; and
- need to protect the child from physical or psychological harm including from being subjected or exposed to abuse, neglect or family violence.
The Court will give greater weight to protection of a child when making a parenting order. The term “meaningful relationship” otherwise refers not only to the amount of time the child spends with their parent, but the way in which that time is spent.
The Court must also consider matters such as views expressed by the child (although this depends on the child’s age and maturity), the nature of the relationship between the child and their parents and any other person significant to their care, welfare and development (such as a grandparent). The Court will also consider the:
- extent to which a parent may have taken or failed to take an opportunity to have meaningful involvement in the child’s life; and
- likely effect of any change in the child’s circumstances, including separation from either of their parents, another child, or any other person (including grandparent or other relative of the child) with whom they have been living.
It’s clear that under the Act grandparents’ rights are significant. However, an order for primary care in favour of a grandparent will only be made in circumstances where it’s determined that it is not in the child’s best interests to remain with the parent (for example, where a parent suffers from an addition to alcohol or drugs, has been in jail, or where a child has been exposed to significant family violence).
In cases where there are no risk issues identified for a child, a grandparent may be successful in obtaining an order to spend time with a child on a regular basis. The amount of time ordered will depend on the circumstances.
Prior to making an application for parenting orders, a grandparent must attempt mediation (unless there’s some urgency). If an agreement can be reached by mediation or via negotiations, then this can be documented and formalised by way of Consent Orders.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.