Grandparents depend on the co-operation of their adult children, and sometimes of their former partners as well, to be able to see their grandchildren. What happens when relationships between older people and their adult children break down, or become abusive? Do grandparents have a right to spend time with their grandchildren?
When a child’s parents separate, or when the parent who lives with the child forms a new relationship and moves away, the child’s relationship with their grandparents can be disrupted. They may see each other much less often, or not at all. In some cases of financial abuse of older people, a threat to withdraw access to grandchildren is used as a lever to get money from elderly parents.
Your grandchild’s right to spend time with you
The Family Law Amendment (Shared Responsibility) Act 2006 introduced significant changes to the Family Law Act. One of the key changes was intended to better recognise the interests of the child in spending time with other important people in their life. Under the Act, this includes grandparents.
The Act recognises that “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)”. And, when a court is making orders under the Act, it has to take into account “the nature of the relationship of the child with other persons (including any grandparent or other relative of the child)”.
So while you don’t have an automatic right as a grandparent to see a grandchild, they DO have a right to see you, if that is in their best interests. And you do a have a right to have your relationship and role in the child’s life considered by a court that is making decisions about what future care and living arrangements would be best for the child.
There are a few things you can do to protect your relationship with your grandchild.
Getting included in a Parenting Plan
Grandparents should always firstly try to seek agreement with the parents about arrangements for spending time with their grandchildren. Grandparents can seek help with this from a Family Relationship Centre. All parties will be invited to attend a mediation session and if an agreement can be reached, they can enter into a Parenting Plan. Parenting Plans are written agreements which deal with issues such as where the child lives and who the child communicates or spends time with. A Parenting Plan can include a grandparent or other relative of the child, but the plan must be agreed to and signed by both parents, so grandparents can only be included if all the parties, including both parents, agree.
Parenting Plans are not binding or enforceable but the courts will consider them if the matter ends up in court.
Find a Family Relationship Centre at http://www.relationships.com.au/who-we-are/affiliated-services
Getting a court order
If there is no agreement, grandparents can seek an order from the Family Court or the Federal Magistrates Court as “a person concerned with the care, welfare and development of the child” to spend time with or communicate with their grandchildren. A grandparent would do this by filing an Initiating Application with the court together with a supporting affidavit. Each matter will be decided on the individual facts and circumstances but the court must consider first and foremost what is in the best interests of the child.
Sometimes a grandparent becomes their grandchild’s primary carer. In that case, they should seek orders that the grandchild live with them and that they have parental responsibility for the grandchild. (“Parental responsibility” means that the grandparent will be able to make long-term decisions relating to such things as health and education.) When the court decides who a child should live with, there is no presumption in favour of a biological parent. If it is decided that it is in the best interests of a child for them to live with a non-parent then the court should order that.
Many grandparents do not have the financial resources to pay a lawyer to assist them with legal proceedings. While some grandparents may be eligible for legal aid, the majority won’t because a strict means test is applied. Many older people, while income-poor, will have assets which make them ineligible for legal aid. The thought of representing themselves will undoubtedly be a daunting one for most grandparents. Some sources of information and advice are listed below.
To find your local Community Legal Centre, visit the Federation of Community Legal Centres site
How to run your own family law case
A self-help PDF kit from the Victoria Legal Aid website publication
Federal Magistrates Court website has a large number of downloadable publications about Family Law cases
For information, advice and support