November 2019 | Shweta Kumar
Are you a grandparent who wants to spend time with your grandchildren? Did you know that grandparents can apply to a court under the Family Law Act for orders their grandchildren live with or spend time with them?
It is often important for children to have a relationship with their grandparents. However, this does not mean grandparents have an automatic right to have contact with their grandchildren. It will always depend on what is in the best interests of the children.
If the parents are separated, they can agree about issues such as who the children will live with, spend time with and communicate with and about other aspects of their children’s lives. This can be done by way of a written agreement called a Parenting Plan or Parenting Agreement or it can be done formally by way of consent orders registered with the Family Court. As a grandparent, you can ask parents to include you in such an agreement.
If you and the parents cannot agree on what time your grandchildren will spend with you or when they will communicate with you, you too can apply to the court for parenting orders about your grandchildren. Parenting Orders can deal with the following:
- where the children live;
- who they spend time with;
- who has parental responsibility;
- what communication they have with other people; and
- any other aspect of the children’s care, welfare and development.
You may also apply to the court for parenting orders in circumstances where you have been stopped from having a relationship with your grandchildren because:
- your relationship with your own child has broken down;
- the parents have separated and one parent refuses to let you have a relationship with your grandchildren; or
- sadly, your child has passed away and the living parent refuses to let you have a relationship with your grandchildren.
In determining what is in the children’s best interests, the court will primarily look at:
- the benefit to the children of having a meaningful relationship with both parents;
- the need to protect the children from harm;
- any views expressed by the children;
- the children’s relationship with their parents and others, including grandparents and other relatives;
- each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent;
- the effect of any change to the current situation on the children;
- the practical difficulties and expense involved in spending time with and communicating with a parent;
- the capacity of each parent and others to provide for the children’s needs (as a grandparent this may include your health, age and financial circumstances);
- the maturity, sex, lifestyle and background of the children and parents;
- if the children are Aboriginal or Torres Strait Islander, their right to enjoy Aboriginal or Torres Strait Islander culture;
- each parent’s attitude to the children and to parenting;
- any family violence involving the children or a member of the children’s family;
- any family violence order that might exist;
- the desirability of making the order that is least likely to lead to further court proceedings; and
- any other circumstance the court thinks is relevant.
There are many factors that a court has to take into account. As grandparents, although you may have the right to apply for parenting orders, it is important to note that it does not mean the court will make an order in your favour. It is important to obtain legal advice about your particular situation and what you can do. If you are in such a situation, please contact one of our experienced family law solicitors to assist you today.