Grandparents can play a fundamental role in the lives of children, this of which can be disrupted during family breakdowns or disputes. However, this is recognised by the Court and the Family Law Act 1975 which emphasises the importance of children having relationships with other significant figures should it be in their best interests. This article will explore the legal framework surrounding the rights of grandparents in family law matters, including custody and access issues.

The rights of grandparents under the Family Law Act

The Family Law Act recognises the right of children to maintain relationships with significant people in their lives, including grandparents. Section 65C of the Family Law Act 1975 stipulates that a grandparent has the right to apply for a parenting order for time with their grandchild. Therefore, whilst grandparents are not guaranteed the automatic right to maintain a connection with their grandchildren, the grandchildren, should it be in their best interests, have a right to maintain a connection with them.

Anyone who has an ongoing relationship with a child, or who can exemplify concern for the care, development and welfare of the child may apply to the court for parenting orders. As a result, despite grandparents not receiving automatic rights to have a relationship with their grandchild, the Court offers them an opportunity to make an application. This is particularly significant for grandparents if they are prevented a relationship with their grandchild by the parents. It will then be up to the Court to make considerations based on the best interests of the child.

Custody and Access for Grandparents

The Family Law Court typically tends to prefer for children to remain in the care of their parents, provided it is in their best interests. However, in the event that circumstances prevent this, the legal framework allows for grandparents to apply for custody under several circumstances. These include

  • When a parent is unable to care for the child
  • When the child is at risk of harm in a parent’s care
  • It is in the best interests of the child.

It is advised that grandparents who are seeking involvement in the lives of their grandchildren should seek legal advice on the appropriate steps to undertake. This is relevant if the parents of the child are unwilling to allow grandparents reasonable access to the child.

The Court will consider the appropriate arrangements depending on whether the grandparent is seeking access to spend time with a grandchild or parental responsibility for the child. Gaining parental responsibility for the grandchild tends to be more challenging unless there are appropriate reasons to do so.

Deciding what is in the child’s best interests

In determining whether the parenting order is in the best interests of the child, including a potential relationship between the grandparent and grandchild, the Court will consider the following factors:

  • What arrangements will keep a child and their carers safe from harm – the Court will consider any current and previous family violence orders and any history of harm
  • The views of the child as well as their development, psychological, emotional and cultural needs
  • The ability of the grandparents to meet the fundamental needs of the child, including the impact that any custody changes if present may have on the child
  • Assessing the benefit to the child of a relationship with their parents and other significant figures including grandparents
  • For Aboriginal and Torres Strait Islander children, the Court must consider how the parenting order will assist the child in their connection with their Aboriginal or Torres Strait Islander culture including kinship connections.

The Appropriate Steps to Take

There are a number of legal options for grandparents should they decide to seek access or custody for their grandchild.

Obtaining legal advice

It is beneficial to obtain legal assistance from a lawyer, especially before applying for a parenting order. Our lawyers at Ramsden Family Law can assist you with your matter.

Dispute Resolution

Under the Family Law Act, unless there are extenuating circumstances including risk of harm, parties are required to try family dispute resolution first. This includes attempting mediation to exemplify a genuine attempt to resolve the matter.

Going to Court

If your matter cannot be resolved through dispute resolution, grandparents are able to lodge an application with the Court.

Case where grandparents had success in obtaining parenting orders

Valentine & Lacerra and Anor [2013] FamCAFC 53

This was a case where the child’s mother had passed away and the father had sole parental responsibility. The maternal grandmother and aunt attempted to maintain a relationship with the child, however, were refused by the father on several occasions to spend time with the child. As a result, the maternal aunt and grandmother commenced proceedings to seek access to the child through application for parenting orders.

This case is significant as it established that when determining application for parenting orders by a non-parent such as a grandparent, the Court will consider this in the same way as an application by a parent according to its own facts and having regard to the best interests of the child as the paramount consideration. The father attempted to argue on appeal that a natural parent with sole parental responsibility must have primacy when the Court is considering making other parenting orders, however, the Full Court found there are no presumptions or preferential positions that apply as between parent and non-parent.

Hence, in this matter, judgment was made to allow the child to reside with the father with orders to spend time with the maternal aunt and grandmother with all parties restrained from removing the child from Australia.

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RAMSDEN FAMILY LAW – HOW WE CAN HELP

If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.

Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, family violence issues, or custody battles, we have the expertise to guide you.

We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.

Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving substance abuse issues.

If you’re facing family law challenges related to substance abuse or criminal law, don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.

Written by Reece Ramsden

Posted in: Latest News

November 21 2024