Grandparents and Family Law proceedings

Grandchildren

When a relationship breaks down and children are involved, grandparents are often affected. Grandparents can play a significant role in a child’s life. Grandparents can feel left out when a relationship breaks down and many want to have an ongoing relationship with their grandchildren.

The Family Law Act Section 60B provides important principles that provide that, except where it would not be in the children’s best interest, “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” Despite this section of the act, it is important to understand that grandparents do not have an automatic right to contact or care for their grandchildren, the right is the child’s right, and ultimately it depends on what is in the best interests of the child.

When looking at whether a relationship between the grandparents and the grandchild/children is in the best interests of the child/children the court will consider Section 60CC of the Family Law Act, including:

  1. The benefit of the child having a relationship with their grandparents;
  2. The need to protect the child from physical and or psychological harm;
  3. The nature of the relationship between the child and grandparent;
  4. The capacity of the Grandparent to care for the child;
  5. If there is any change, the effect that change will have on the child; and
  6. The practicality of the child spending time with the grandparent (such as travel etc).

Aside from the above, in considering if it is in the best interest of the child to have a relationship with their grandparents, there may be situations where a grandparent may have to go a step further and apply for parenting orders in relation to the child so that they can spend time and communicate with the child.

There may also be situations where a child cannot live with their parents and their parents do not have a capacity to care for the child, in these cases a grandparent can make an application to the court for parental responsibility. The court will assess the circumstances and evidence of the relevant parties and make an order that it thinks is in the best interests of the child, it may be that it is in the child’s best interest to order a grandparent or grandparents to have parental responsibility. For example, the parents of a child may be incarcerated or struggling with serious drug addictions, it may be that the grandparents are best to make major long-term decisions for the child, such as schooling, medical and religious decisions. If the court ordered a grandparent to have parental responsibility of the child, it is likely that the child would live with that grandparent and spend time with other people as ordered by the court.  

If you are unsure as to your rights or a grandparents rights in spending time with a child please contact one of our experienced family lawyers on (02) 4944 3322.

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