Understanding “Grandparents rights in Australia” is essential, especially when considering the importance of the relationship between a child and their grandparents. This relationship is recognised under section 60B(2)(b) of the Family Law Act 1975 (“FLA”) in Australia, which states:
“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)”.
An exception occurs where this is contrary to the child’s best interests. Where there are difficulties in the relationship between a grandparent and their adult child who have children of their own, this relationship breakdown can further impact the relationship between the grandchild and their grandparent.
Grandparents who are restricted from seeing their grandchildren by the child’s parents may wish to spend more time with them and in some circumstances may need to seek legal help to do so. Alternatively, some grandparents may seek to become guardians of their grandchildren for various reasons.
It is important to note that the term ‘custody’ is no longer used in Australian Family Law and instead is recognised as parental responsibility.
Understanding Visitation Rights
The FLA stipulates the importance of facilitating an ongoing relationship between a child and their grandparents.
When there is a relationship breakdown between the parents of a child, most grandparents still want to be involved in the upbringing of the child, even if their adult child plays less of a role as a parent in the child’s life.
When determining whether it is in the best interests of the child for the court to facilitate a relationship between the child and grandparent, they will look at factors listed in section 60CC of the FLA such as:
- The benefit to the child of having a relationship with their grandparents;
- The need to protect the child from harm;
- Any views expressed by the child the court thinks are relevant;
- The nature of the relationship between the child and grandparent; and
- The likely effect of any changes on the child.
The single most important consideration is the need to protect the child from harm. The best interests of the child will always come first.
How Grandparents Can Seek Access
Grandparents seeking involvement in their grandchildren’s lives should seek legal advice.
The next steps would likely involve mediation with the parents of the child. If the parents of the child are still unwilling to allow the grandparents reasonable access to the child, the grandparents may then need to go to court for orders to spend time with the child, which the court may not grant if they are not in the best interests of the child.
When and How Grandparents Can Gain Parental Responsibility
Grandparents do not have an automatic right to be responsible for the care of their grandchildren.
When a child cannot live with their parents, someone else may have to become their caregiver, such as a grandparent, other relative, or family friend. This type of care is called kinship care.
When acting in this role, guardians of children do not have set roles like parents do; the care may instead be provided on a short-term basis or long-term if the parents cannot do it themselves.
If you wish to obtain parenting orders from the court, you will need to make an application which argues that living with you would be in the best interests of the child.
Need Guidance on Family Law Matters?
Navigating family law can be complex and emotionally challenging. Whether you’re dealing with custody issues, divorce proceedings, or any other family law matters, you don’t have to face it alone. Contact Matthies Lawyers today for expert legal advice and compassionate support. Let us help you find the best path forward.
Legal Challenges
The legal challenges associated with grandparent rights will differ depending on whether the grandparent seeks to spend time with a grandchild, or whether they seek parental responsibility for the child.
It may be significantly easier to seek time with a grandchild, as this may be done without the need for court if the parties can negotiate themselves or by mediating.
Additionally, the court is likely to feel more comfortable making orders for grandparents to have access to grandchildren rather than giving them parental responsibility, unless there is a good reason for this.
The court will only order the grandparents to have full time care of a child with good reasons, where other options may not be suitable, for example, the parents of the child may have issues such as addiction or severe mental illness which is causing harm to the child.
If this harm is immediate, child services should also be notified.
If one parent is unable to be a parent to the child, the court will likely order the other parent care for the child if they are able to, before passing the responsibility to the grandparents.
Mediation
Mediation is a cheaper and faster way of resolving disputes without the need for court.
Mediation may also facilitate a better relationship between the grandparents and the parents of the child as mediation allows for negotiation and may prevent further breakdown of the relationship. This may be a more suitable avenue to resolve these sorts of disputes.
Finding Support and Taking the Next Steps
If you are worried about the immediate safety of your grandchild, you should contact the police and your local welfare agency.
For the next steps in seeking parental responsibility for your grandchild, you should first obtain legal advice from a reputable family lawyer.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
—
Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.