Article

Grandparents and the Separated Family

22 June 2015

When a family breaks down it is not only the parents and children who are affected. Grandparents and other members of the extended family may feel that they are being shut out from the lives of children whom they care very much about. The good news is that grandparents and significant people in a child’s life have a number of options available to assist them with arranging to spend time with that child.

In many cases separated parents will make their parenting arrangements outside the court system, either through negotiation and agreement, or with the assistance of a family dispute resolution practitioner in mediation. You can ask to be included in these plans or if you are unable to agree with the separating parents you might ask a lawyer to assist you with negotiations or offer to participate in mediation.

Mediation, also known as family dispute resolution or FDR, is usually a prerequisite before you can make an application to the court. The mediator will help everyone calmly discuss the issues and hopefully reach an agreement about the best way to move forward. This process is much less expensive than going to court and can often be less destructive to already strained relationships.

If you reach an agreement at mediation it is a good idea to have the agreement drafted into consent orders. This makes the agreement enforceable by the courts.

If you are unable to reach an agreement at mediation, you will need to seek legal advice to find out whether your claim is strong enough to justify the expense of litigation, and the best way to proceed. Under the Family Law Act, children have a right to spend time with and communicate with people who are significant to their care, welfare and development. This does not mean that grandparents and other relatives have an automatic right to contact orders. What it means is that you have the right to have the court assess whether such contact is in the child’s best interests and to make contact orders in your favour if you show that you have a close ongoing relationship with the child or have had a significant involvement with the child’s welfare. The order may provide for you to have visits with the child, or contact through phone, email or other appropriate methods.

Whatever decisions are made, whether in court, through negotiation or in mediation, all parties need to remember that the best interests of the child must be their first priority. If you are a parent who is wondering whether allowing contact with extended family is in your child’s best interests, you may wish to consider these words from an Australian Family Court judge:

“we live in troubled economic times and by way of example, in 20 years’ time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.”

On the other hand, if both parents are in agreement that it is not in the child’s best interests to have a relationship with a grandparent or extended family member, the courts will be reluctant to interfere with their parental responsibility by ordering that such contact must occur. So long as the parents are exercising their parental responsibility in an appropriate and child-focused manner, the court will be cautious about undermining their responsibility. In any event, the decision the court arrives at will depend on your specific family dynamics and the best interests of the particular children involved rather than any generalised formula.

If you are a grandparent who has significant concerns about your grandchild’s care, welfare or development, such as a belief that a child is at risk of abuse or exposed to family violence then you should report your concerns directly to the police or the Department of Community Services. In these circumstances, a grandparent may wish to apply for sole parental responsibility due to a belief that the child’s parents are not capable of properly fulfilling their parental role. Once again, the child’s best interests will be the priority and there is no presumption in favour of a child living with his or her biological parents. However, such applications are often fiercely contested and it is important to have legal advice specific to your situation before embarking on this course of action.