Grandparents play a significant role in the development of a child. Australian law recognises grandparents rights in Australia. Following divorce or separation, custody arrangements generally include only the parents of the child.
However, how do courts deal with cases where there is domestic or family violence? Family courts consider grandparents rights in Australia to determine whether the child can spend time with the grandparent.
This article will provide an overview of grandparents rights in Australia, and detail the various legal concepts that are relevant to this topic.
What Are Grandparents Rights In Australia?
The Family Law Act 1975 does not refer to rights of any person. This includes the parents of the child, to maintain a relationship with the child.
Instead, the paramount consideration, as stated by the Act, is the best interests of the child. The legislation defines the primary considerations in determining the best interests of the child to be: –
- If the child to maintain a healthy and meaningful relationship with both parents, and
- If the child has protection from physical or psychological harm, abuse, or neglect
There are no explicit grandparents rights in Australia, to maintain a relationship with their grandchild. Indeed, there is no special provision for grandparents in Australian law. However, there are certain avenues that can help them maintain a healthy relationship with their grandchildren.
This is important since grandparents play a crucial role in a child’s life. Oftentimes, the impact of the breakdown of a relationship affects the grandparent the most. Although the grandparents are not directly involved, the spouses sometimes become estranged from each other. This greatly affects extended family members like grandparents.
The Family Law Act Say and Grandparents Rights In Australia?
Section 60B of the Family Law Act states 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.”
The Section defines ‘grandparents’ as ‘other people’ in the family who are significant to the child’s welfare and development.
In cases where it is contrary to the child’s best interests to have access to their grandparents, the court might deny grandparents from visiting or maintaining contact with the grandchildren.
When Can Grandparents Make A Court Application?
As mentioned, grandparents are specifically mentioned in the section as relevant family members who can contribute to a child’s growth and development.
As part of grandparents rights in Australia, they have the right to apply for parenting orders in relation to the child, whenever necessary.
There are some circumstances where this might be necessary. These are as follows: –
- A parent is preventing the child from communicating with his/her grandparents, or the parent is preventing the child from spending time with his/her grandparents.
- A parent is not able to care for the child, or not able to provide for the child.
- There is a threat to the child’s safety under the parent’s care.
Based on the individual circumstances of the case, if the grandparent makes such an application, the court has the authority to order that a child must live in the primary care of the grandparent. Another option is that the child must spend time with the grandparent on a regular basis.
Grandparents Claiming Parental Responsibility
The Family Law Act 1975 defines parental responsibility as:
“Parental responsibility in relation to the child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
As part of grandparents rights in Australia, they generally have the right to apply for parental responsibility.
The court will check the circumstances and perspectives of all involved parties and make an order in relation to the rights and responsibilities of the child. While making an order on parenting agreements, the court will consider a variety of things. These include: –
- Who has parental responsibility over the child
- Any medical issues that the child has
- Schooling of the child
- What kind of communication the child will have with other people
- Any religious and cultural practices that are followed by the child
- How the disputes are to be resolved, and
- All other aspects of the child’s welfare, care, and development.
Visitation Rights Of Grandparents
Grandparents can ask the court to help them see their grandchildren. Before the court approves, it will look at certain factors, such as:
- The benefits of the child having a meaningful relationship with his/her grandparents
- The views of the child – whether they see their grandparents as an important part of their lives, or whether they wish to visit their grandparents
- The nature of the relationship between the child and his/her grandparents
- The risk of neglect, harm, or violence
- The capacity of the grandparents to take care of their children – given their emotional needs
- The effects of all these changes on the child
- Any difficulties and expenses that may arise as a result of the arrangement.
Seek Legal Advice Today
To summarise, there are no explicit rights mentioned for grandparents in the Family Law Act. But, there are some legal provisions that can ensure that the grandparent maintains a relationship with the grandchild following the separation or divorce of the child’s parents.
Because of the complex nature of Australian family law, it is necessary to gain legal advice or opt for family dispute resolution. When a relationship between two spouses ends, the impacts are felt by grandparents, especially in cases where the grandparents and children shared a close relationship.
Often, if there are disputes during divorce proceedings, or after separation, grandparents don’t get much of a say. This is unfair because every child has the right to maintain contact with family members who add to their development and welfare.
To understand grandparents rights in Australia, obtain legal advice with one of our compassionate and experienced family lawyers at JB Solicitors. We can help with securing your relationship with your grandchildren.
Contact us today to talk to our friendly lawyers for all matters regarding grandparents rights, the right parenting order for you, and visitation rights.
