Mid Mountains Legal Blog

DO I HAVE A RIGHT TO SEE MY GRANDCHILDREN UNDER FAMILY LAW?

Anthony Steel

Are you a grandparent who wants to spend time with your grandchildren? Did you know that grandparents can apply to a court under the Family Law Act for orders that their grandchildren live with or spend time with them?

It is important for children to have a relationship with their grandparents, but this does not give grandparents an automatic right to spend time with their grandchildren. It depends on what is in the best interests of the children.

If the parents are separated, they can agree about issues such as who the children will live with, spend time with and communicate with and about other aspects of their children’s lives. This can be done by way of a written agreement called a Parenting Plan or by way of consent orders registered with the Federal Circuit and Family Court of Australia (FCFCA). A grandparent can ask parents to include them in a parenting plan or consent orders.

If you and the parents cannot agree on or when your grandchildren will communicate with you or what time they will spend with you, you can apply to the FCFCA for parenting orders about your grandchildren. Parenting Orders can deal with the following:

  1. who has parental responsibility for the child;
  2. where the child lives;
  3. who they spend time with;
  4. what communication they have with grandparents; and
  5. any other aspect of the child’s care, welfare and development.

Circumstances in which you may also apply to the FCFCA for parenting orders where you have been prevented from having a relationship with your grandchildren include:

  1. the parents have separated and one parent refuses to let you have a relationship with your grandchildren;
  2. your relationship with your own child has broken down; or
  3. sadly, your child has passed away and the surviving parent refuses to let you have a relationship with your grandchildren.

In determining what is in a child’s best interests, the FCFCA will primarily look at:

  1. the benefit to the child of having a meaningful relationship with both parents;
  2. the need to protect the child from harm;
  3. any views expressed by the child;
  4. the child’s relationship with their parents and others, including grandparents and other relatives;
  5. each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent;
  6. the effect of any change to the current situation on the child;
  7. the practical difficulties and expense involved in spending time with and communicating with a parent;
  8. the capacity of each parent and others to provide for the child’s needs (this may include a as a grandparent’s health, age and financial circumstances);
  9. the maturity, sex, lifestyle and background of the child and parents;
  10. if the child identifies as Aboriginal or Torres Strait Islander, their right to enjoy Aboriginal or Torres Strait Islander culture;
  11. each parent’s attitude to the child and to parenting;
  12. any family violence involving the child or a member of the child’s family;
  13. any family violence order that might exist;
  14. the desirability of making the order that is least likely to lead to further court proceedings; and
  15. any other circumstance the FCFCA thinks is relevant.

There are many factors that a court has to take into account. Although a grandparent has the right to apply for parenting orders, the FCFCA will not automatically make an order in your favour. It is important to obtain legal advice about your particular situation and what you can do. If you or someone you know is in such a situation, contact us to assist you.

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