Grandparents play a significant role in the development of a child. Australian law recognises grandparents rights in Australia.
Following divorce, separation, or the breakdown of a de facto relationship, custody arrangements generally include only the father and mother of the child.
However, in many cases, especially where domestic or family violence is involved, grandparents rights in Australia are taken into consideration 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, including 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 is protected from harm, abuse, or neglect
There are no explicit grandparents rights in Australia, to maintain a relationship with their grandchild. Although there is no special provision for grandparents in Australian law, there are certain avenues that can help them maintain a healthy relationship with their grandchildren.
This is important given the crucial role that grandparents play 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.
What Does The Family Law Act Say About 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.”
Grandparents are included among the ‘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 above, grandparents are specifically mentioned in the section as relevant family members with whom the children have a right to spend time.
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, or that the child must spend time with the grandparent on a regular basis.
Grandparents And 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 are allowed 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.
Importance Of Seeking Legal Advice
To summarise, although there are no explicit rights mentioned for grandparents in the Family Law Act, 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 family law, it is necessary to gain legal advice. 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, speak with one of our compassionate and experienced family lawyers at JB Solicitors.
Contact us today to talk to our friendly lawyers for all matters regarding grandparents rights, parenting orders, and visitation rights.