Australian Family Law and the rights of Grandparents

Grandparents often play a central and important role in their grandchildren’s lives, but the structure of their relationship can be significantly impacted if there is a strained relationship with the parents of the grandchildren.  

This situation can sometimes arise when the parents are still together, but is more common when parents separate.  Grandparents may be prevented or restricted from spending time with their grandchildren and this can result in significant heartbreak and distress.  However, there are procedures through which grandparents can maintain a relationship with their grandchildren.

In Australia, children generally have a right to spend time with extended family members, such as their grandparents.  The law defines a grandparent as the parent of the child’s mother or father.

It’s important to understand that the family law legislation is concerned with the rights of the child and what is in their best interests, rather than the rights of the parents or other significant people in the child’s life such as grandparents. 

Generally, grandparents or any other significant person in the child’s life (such as close relatives like an aunt or uncle) who are concerned with the care, welfare and development of the children, are able to seek Orders from the Family Court facilitating the continuation of their relationship with the children if this has been adversely impacted as a result of the parents’ separation or divorce or as a result of a strained relationship with the parents.

Grandparents do not have an automatic right to see, care for, communicate with or be involved in the lives of their grandchildren. However, Australian family law recognises that children have a right to maintain regular contact with ‘significant’ people such as grandparents, if it is in their best interests to do so.

A Parenting Order is a court order that the Family Court makes in relation to the child’s care, welfare and development and can deal with issues such as where the child will live, parental responsibility and how the child communicates with other significant people in their lives, such as grandparents. 

In considering such an order, the court will take a range of factors into account, such as:

  • The existing relationship between the child and their grandparents
  • Whether the child would benefit from a relationship with their grandparents
  • The ability of grandparents to provide for the child’s emotional needs and wellbeing

A Parenting Order is legally binding on the parties, but not on the child. 

Grandparents and custody of a child

As discussed above, grandparents have no automatic right to a relationship with their grandchildren, but they can take action if they have concerns about their grandchildren’s welfare or are being prevented from having a relationship with their grandchildren.  

When there are risk factors such as instances of abuse, neglect, substance abuse and domestic violence, grandparents can apply for “custody” (now referred to as a “live with” or “spend time with”) of the child. If grandparents are concerned that their grandchildren are not being parented appropriately and there are risk factors, they can file an application with the court for parenting orders.  The court will only grant such an order if it deems that the parent or parents of the child are not able, are not willing, or have no capacity to take care of the child.

The court may grant a parenting order to the grandparent/s which means they become the child’s primary caregiver.  The court may also grant parental responsibility to the grandparent/s, which means they can make significant decisions about the child’s life (such their education and any medical treatment) without having to consult with the parents beforehand.

Save for some limited exceptions, any application for parenting orders in the Family Court of Western Australia must have with it a s60i certificate from a mediator. That is, mediation must generally be attempted before the Family Court becomes involved.  

Conclusion

We generally recommend that grandparents who are encountering obstacles to maintaining contact or communication with their grandchildren seek out a private mediator who is skilled in family dispute resolution before applying to the courts.  It is also advisable to obtain family law advice so that the potential risks and benefits are carefully weighed up before taking any action.

West Family Lawyers has extensive experience in all aspects of family law, including grandparents’ rights and we work closely with Family Court-recognised mediators ‘Family Dispute Resolution Practitioners’ (FDRP) to achieve the best outcomes for our clients.  If you would like to make an obligation-free appointment with one of our family lawyers in Perth, please get in touch.

Please note that the content of this article is general in nature and doesn’t constitute legal advice.  You should always seek specialist advice for your unique circumstances.

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