Can you withhold grandchildren from grandparents in New South Wales? Let’s find out.
Sometimes grandparents are denied access to their grandkids. This can happen when your relationship with your child breaks but your relationship with your parents is still good. It can also happen when your parents have divorced and one of them won’t let you see your grandchildren.
And having a relationship with your grandchildren isn’t a right of grandparents. But anyone who has a relationship with their own children, or anyone who can show they have an interest in the care, welfare or development of a child. This includes grandparents who can apply to the court for a parenting order.
NSW Legislation: Withholding Grandchildren From Grandparents
In Australia, the Family Law Act 1975 covers property settlement, living arrangements, a child’s life, and children’s. This is the case either if they are a young or adult child. The Act also highlights a child’s contact after a parent’s divorce, regardless of the parent’s marital status.
What if parents are preventing their grandchildren from seeing their grandparents or other family members? If so, they can apply to the court for orders that let their grandkids live or spend time with them. This can be done regardless of the parent’s relationship status.
Children’s relationships with their grandparents are important and the Family Law Act acknowledges this. The Family Law Act says grandparents have a special right to ask a judge for orders about their grandchildren. But it’s important to understand this doesn’t give parents or grandparents an automatic right to spend time with their grandchildren.
When it comes to parenting decisions the Act makes it clear the “best interests of the child” come first. The Act puts a big emphasis on children’s right to know and receive care from their parents. Moreover, the Act highlights other important people for their upbringing, welfare and development, like grandparents and other family.
Reasons For Withholding Grandchildren From Grandparents
There are many reasons why parents may be withholding grandchildren from grandparents:
- Concerns about the Grandchildren’s Safety and Wellbeing. For many parents, this is their number one concern. Worries about the grandparent’s physical ability to care for the child. For example, because of age, physical health issues, severe mental illness issues, may be present.
- Disagreements on Child-Rearing Practices. Parenting philosophies can be different. Parents may feel that by indulging the kids, breaking the rules, or imposing competing values the grandparents undermine their power on raising children.
- Family Conflict and Estrangement. A grandchild-grandparent relationship can be affected by and spill over from the underlying family conflict. This can include past arguments, unsolved problems, or new dynamics brought about by divorce, blended families, or in-law problems.
- Domestic Violence or Abuse. Protection of the child becomes paramount if the grandparent has a history of abuse or domestic violence. Such abuses includes prior sexual abuse or physical, emotional, or both.
- Protecting the Children from Unhealthy Influences. If grandparents are being bad or acting in ways parents believe are bad for their children’s upbringing, parents may cut off communication. This could include biased behaviour, bad habits, or exposing the children to inappropriate environments.
You may contact the Family Relationship Advice Line if you are:
- Struggling with family relationships; or
- Family separation issues such as withholding grandchildren from grandparents at 1800 050 321.
Withholding Grandchildren From Grandparents: Australian Case Law
There are many family law cases involving grandparents and their grandchildren where the Court has made specific findings about such cases. The cases below will elaborate why withholding grandchildren from grandparents may be within the bounds of law:
Cowles & Cowles & Madden [2008] FMCAfam 1091
For many years the maternal grandparents in this case had been the primary carers and supports for their now 8 and 10-year-old grandchildren. The grandparents had supported their daughter in her role as a parent as best they could.
But the tipping point came when she got back with an unsuitable partner who had a long criminal history and stopped sending the child to school. The grandparents thought they had to take action to keep their grandkids safe.
When they appeared in court the mother was looking after the children. However, the children were ordered to be returned to the grandparents and spend half the holidays and weekends with the mother. This is because the court found that the mother’s shortcomings and past parenting style were not suitable for the children.
This is a case where grandparents were the primary carers because the parent were not a good parent in the past and in present. Indeed, being a parent was a big factor. However, the court decided it was in the child’s best interests for the grandparents to be the primary carer.
Sampson & Jacks [2008] FamCA 176
What happened in this case was a mother and her parents were at odds over two children 8 and 10 years old. Despite having some good memories of their grandparents the grandchildren had not seen them in 6 years.
The mother was opposed to the grandkids having any contact with their grandparents, alleging they had sexually abused them. The allegations of abuse were found to be untrue.
So the grandparents were initially given a limited amount of “supervised” time. The time would increase to unsupervised time every 3rd weekend and some holiday time for 4 hour days in 2 years time.
Flitter & Flitter [2023] FedCFamC1F 426 (27 March 2023)
In this case, there was a risk of harm (including sexual abuse) to the children if they spent unsupervised time with the father. So, the Court ordered the mother to have sole parental responsibility for all major long-term issues affecting their three children.
Also, the court ordered that the children can spend time with the paternal grandparents at all times. However, there needs to be a written agreement between the mother and the grandparents. Here, the Court also ordered that the grandparents be restrained from talking to children about the following matters:
- Adult issues
- Matters that concern their father
- Issues or topics that concern their mother and father’s relationship etc.
Contact a Family Law Expert Today
Grandparents’ rights in Australia are not automatic and the family court will decide if having these rights is proper. Our family lawyers from JB Solicitors can explain the legislation (Family Law Act) to grandparents. We can highlight why grandparents cannot see their grandchildren. As law experts, we can also explain what the court considers when deciding on grandparent visitation or custody.
Do you need more information about withholding grandchildren from grandparents and other family law matters? Then you can contact us, and let’s talk about your case. We can also help lodge parenting orders for our clients who want to care for children.
