When dealing with any family law matter that involves children, it is essential to discuss the topic of grandparents’ rights in Victoria.
The importance of grandparents in a child’s life cannot be understated. They often act as support systems for the child, and represent love and stability for the child.
This is especially true in cases of breakdown of a marriage or relationship, where a child’s parents are going through a divorce. In this matter having grandparents’ support and love is crucial for them as they need the emotional support to be able to deal with such stressful situations.
If you are a grandparent who is worried that you may lose contact with your grandchild after his/her parents separate or divorce, read this article to gain information on your rights. This aim of this article is to discuss grandparents’ rights in Victoria.
What Are Grandparents’ Rights In Victoria?
Not only in Victoria, but under Australian law it is understood that grandparents have the right to apply in Family court and ask for the time to spend with their grandchildren.
However, it is important to note that the Family Law Act 1975 does not list any explicit rights for grandparents. In other words, there is no explicit mention in the Act with regards to grandparents rights, including their rights to see or care for their grandchildren.
But, notably, such an explicit provision is not stated for parents either. According to the Act, parents do not enjoy “parental rights”, rather, they have “parental responsibility” towards the child.
The Family Law Act 1975 gives paramount consideration to the best interests of the child. The two primary considerations that are included here are: –
- The need to protect the child from all forms of abuse, harm, or neglect.
- The benefits to the child of having a meaningful relationship with both parents.
However, this also means that if the court considers that having a meaningful relationship with grandparents, and allowing grandparents to have complete access to the children is in the best interests of the child – the court will make court orders accordingly.
Additionally, under Section 60B of the Family Law Act 1975, it is stated 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.”
Under this point, grandparents are mentioned as people, along with other relatives, who are concerned with the care, welfare and development of the child. In other words, children have the right to spend time with their grandparents, provided that this would be in their best interests.
Grandparents’ Visitation Rights
Under grandparents’ rights in Victoria, they are eligible to make an application for visitation rights at the court. In this regard, there are various factors that the court takes into consideration: –
- The benefits and advantages that the children will enjoy by having a relationship with their grandparents;
- The views and opinions of the children, including whether they wish to spend time with their grandparents, and whether they consider grandparents to be a significant part of the their lives;
- The nature and relationship between the children and their grandparents;
- The risk of violence or neglect;
- The capacity of the grandchildren to take care of their child, and the capacity to consider the child’s emotional and intellectual needs;
- The practical difficulties that may arise, and expenses; and
- The impact that this change will have on the child’s life.
By reading this, you may realise that grandparents enjoy the legal right to maintain a relationship with their grandchildren, even though there is no explicit provision in the Act.
Primarily, when the court considers an application made by grandparents, it considers their rights to maintain a relationship with their grandchildren, and makes orders accordingly.
Custody Matters And Grandparents Rights In Victoria
Under grandparents rights in Victoria, depending upon the particular circumstances of the case, grandparents can also have a say in custody matters. Similar to the custody options available to parents, these are the following avenues for grandparents: –
- Parenting Plans.
Parenting plans are usually made by parents, and are informal arrangements around custody that parents make following divorce or separation.
Parenting plans are considered in matters when there are no disputes or conflicts on parenting matters. Grandparents can be included in parenting plans, and arrangements can be made to ensure that grandparents share a relationship with their grandchildren.
Ideally, this should include a written agreement which includes grandparents rights in relation to the children. But, since parenting plans are more informal in nature, it is advisable that grandparents seek a more concrete approach.
- Consent Orders.
Consent orders are written agreements that are approved by the Family Courts, thereby formalising the agreement and making it binding.
These are especially useful if there are conflicts in the family and if the grandparents are worried that the parents might go back on their word about respecting grandparents’ rights.
- Parenting Orders.
Grandparents can apply for parental responsibility at the court. The court will make decisions based on the best interests of the child. In making parenting orders, the court will consider factors like: –
- Where the child will live;
- Who the child will spend time with;
- Important aspects concerned with the child’s welfare, care and development;
- Who has parental responsibly for the child; and
- What communication will the child have with others.
How Can JB Solicitors Help?
This article has provided an overview of grandparents’ rights in Victoria. Now it is important to note that in many cases, there are disputes and conflicts between parents and grandparents on how arrangements should be made.
In case of disputes, approaching the court should only be considered as the last resort. You need to try resolving the disputes via mediation. Our expert mediators will take into consideration all the factors of your case, and help you out in each step to reach a satisfactory outcome.
Additionally, if grandparents wish to apply for parenting orders, it is highly advisable that they do so with the help of experienced family lawyers.
As a grandparent if you wish to boost your chances and strengthen your case, get in touch with our friendly lawyers today.