Grandparents’ rights are frequently impacted by relationship failures, and this is sometimes overlooked when discussing divorce and separation. Grandparents play a fundamentally important role in children’s lives and all needs to be done to ensure that the connection between children and their grandparents continues despite the separation of the parents.
But importantly, when considering grandparent’s rights, we need to emphasize that in the context of family law, parents don’t have rights, nor do grandparents have rights. The premise of family law in Australia is that children have rights and courts want to see decisions always made in the best interests of the child.
Separation generally necessitates a major reorganization of the family, with numerous changes for both the parents and the children.
Extended family members such as aunts, uncles, and especially grandparents may be affected by these changes.
When one of their children’s relationships breaks, many grandparents worry that they won’t be able to visit their grandkids.
Hence, grandparents may be denied access to their grandkids depending on the strength of the connection with their own children and sons or daughters-in-law.
When one parent is given sole or primary custody of the children and does not want to keep in contact with the grandparents, this is where grandparents and grandchildren suffer the most.
Grandparents are typically very significant individuals in the lives of children, and it can be sad to lose contact with them due to a separation or divorce.
There are, however, ways for grandparents and grandkids to continue or re-establish contact and connection with their grandchildren. In this article, we’ll discuss the ways you’re able to do this.
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Grandparents’ Legal Rights in Australia
There is nothing in the Family Law Act 1975 that clearly mentions grandparents’ rights to see or care for their grandchildren.
In truth, neither the parents nor their children have automatic parental rights. Parents have obligations towards their children and children have rights. We cannot overemphasize this important point. As a grandparent or parent, you do not have rights, the children have rights.
Grandparents, like extended family members and other important persons in a child’s life, have the right to see and spend time with them.
The relevant legislation says, children have a right to spend time with, and speak with, both their parents and other individuals who are important to their care, welfare, and development on a regular basis.
Grandparents are particularly cited as examples of those concerned for the care, welfare, and development of children elsewhere in the legislation.
The legal definition of a grandparent is the parent of the child’s mother or father.
A child typically has four biological grandparents, both living and deceased, as well as non-biological grandparents.
The fact that grandparents do not have an automatic right to see their grandchildren does not mean they are powerless.
Grandparents have the legal right to seek a court order allowing them to speak with and spend time with their grandchildren.
In the Child’s Best Interests
The best interests of the child are at the heart and soul of family law.
This means that a child has the right to benefit from a relationship with their grandparents if it is in the best interests of the child.
When a grandmother seeks a court order granting them access to their grandchildren, the court will consider a number of considerations in deciding whether the order should be granted.
These elements include:
- The need to protect the child from suffering from or being exposed to abuse, neglect, or familial violence, or the chance of these things happening to them.
- The advantages of having a close relationship with their parents and grandparents
- The type of relationship the youngster has with his or her parents and grandparents.
- The impact of any modifications to the current arrangements on the child
- The ability of the parents and grandparents to meet the emotional and intellectual requirements of the child
- The parents’ and grandparents’ attitudes towards the child
- The viewpoints of the child, taking into account their age, maturity, and comprehension of the issue
- Contact and communication concerns that are practical
You’ll need to show the court that what you’re asking for in your application is in the child’s best interests. At Mediations Australia, talk to our family lawyers who can assist you in this regard.
Grandparents are particularly listed among the people who can apply for a parenting order with respect to a child in section 65C of the Family Law Act 1975. The relevance of grandparents’ rights in Australian law is reaffirmed by this.
A parenting order is a court order that addresses a specific issue, such as:
- Who the child spends time with, where the youngster lives, and how parental duty is divided
- How will the youngster communicate with other important persons in his or her life?
- Any other area of the child’s care, growth, or welfare
Depending on the situation and specifics of each parental order application, several communication strategies will be used. For example, Skype, phone conversations, emails, letters, and the mailing of presents are all examples of communication.
According to the specific situation, parenting orders in favor of the grandparent spending time with their grandchild may include numerous distinct arrangements of spending time.
Grandparents’ rights, for example, may allow them to spend time with their grandchildren during overnight visits, day visits, weekend stays, or permitted time during school holidays.
This is the most effective way to enshrine a grandparent’s right to see his or her grandchildren in law.
The order must be in the best interests of the child for a parenting order to be granted in favor of the applicant, in this example, the grandmother.
A parenting order can also be used to give the grandparent custody of the child.
A grandparent can have sole custody of their grandchild or share custody.
Custody orders may be necessary when one of the child’s parents is unable, unwilling, or incapable of caring for them.
The court must be satisfied that the child’s parent falls into one of these categories and is unable to meet the child’s emotional, intellectual, developmental, or financial needs in order to grant such an order.
Wherever possible, the court prefers to allow the child to benefit from a meaningful relationship with their parents.
As a result, in cases involving abuse, neglect, familial violence, or substance misuse, the court is more likely to give a parenting order for custody in favor of the grandparents.
When grandparents legally become a child’s primary caretaker as a result of a parenting order, the court may also assign the grandparent parental responsibility.
Involved in a Parenting Dispute?
Custody and Parental Duty are not Synonymous.
Parental responsibility refers to a parent’s legal authority, duty, and responsibility with respect to their child.
It entails the ability to make key decisions about the child’s life, including where they attend school, their religious and cultural upbringing, and any medical treatment they may receive.
If a grandparent has parental responsibility for their grandchild, they are not required to consult the child’s parents before making decisions for the child.
Parents and grandparents of a child can apply to the court for a parenting order by consent if they agree on arrangements, contact, custody, and communication.
The agreement reached between the parents and grandparents is formalized through a parenting order by consent, or what is commonly called a Consent Order.
Talk to us at Mediations Australia about how we can help you today.
Parenting orders, whether made by a judge or by consent, are legally enforceable.
Another sort of arrangement is known as a parenting plan.
Although family law recognizes parenting arrangements, they are not legally enforceable.
A parenting plan is a written document that outlines the arrangements for a kid that have been agreed upon by the parents and grandparents.
Grandparents’ rights can be protected through a parenting plan. But you must remember it is not legally binding. The only way to make it legally binding is to have the parenting plan converted into consent orders.
The attraction of a parenting plan is you do not have to consult with a family lawyer and apply to the court to have them made into Consent Orders. But there are inherent risks given that the parenting plan will not bind all the relevant parties legally.
Consent Orders and Grandparents
While it is apparent that grandparents’ rights to see their grandchildren in Australia can be obtained through the courts, there may be times when a grandparent has to go to the next step and seek parenting orders.
A parenting order is a series of court orders that govern some aspects of a child’s upbringing. This order can be put in place if both parents and grandparents agree to it (consent orders). It might also happen if the parents restrict the grandparents and grandchild from developing a relationship. The following are some of the issues that are addressed in a parenting order:
- Where does the child reside?
- What percentage of the child’s time is spent with his or her parents and grandparents;
- a division of parental responsibilities;
- Any other part of the child’s care, welfare, or development; and how the child communicates with other significant persons who do not live with them.
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Mediation Prior to Filing an Application with the Court
Although the Family Law Act establishes grandparents’ rights to see their grandchildren in Australia through court orders, at Mediations Australia, we recommend that you and the parents try to come to an agreement through mediation. Why? Because mediation is a significantly more effective and significantly cheaper way of getting people to come to an agreement. If alternative measures such as mediation or family dispute resolution have failed, court applications should be used as a last resort. Before any applications to the Court can be made, there must be proof that all parties have tried to resolve the issue through mediation or family conflict resolution. The only exception is if the situation is urgent or there is a risk of harm to the children.
What is the best way to see a grandchild?
Throughout Australia, grandparents have the right to see their grandchildren. However, if you are having trouble with their parents, you can see your child by following the steps below.
- Obtain legal advice from an early resolution focused law firm. You do not want to consult with a law firm that is preoccupied with litigation. It will prove lengthy and costly.
- To save time and money, try to reach an arrangement with the parents before coming going to court. Mediation is the best way forward.
- Going to Court: If mediation fails, you can go to court to seek an order allowing you to spend time with your grandchild.
How We Can Help
The value of children having a relationship with their grandparents is recognized by the law. At Mediations Australia, we provide holistic legal services from mediation through to drafting parenting plans and consent orders to litigation if necessary. Talk to one of our family lawyers or mediators today. Who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia.