The relationship between a grandparent and grandchild is often a very special one. Grandparents are an important part of a child’s family and can play a significant role in their upbringing.
But what happens when the normal role of a grandparent is disrupted, and even sometimes totally severed, due to a separation or divorce – do grandparents have rights when it comes to their grandchildren?
In short, grandparents do not have rights, but grandchildren have the right to have a relationship with their grandparents, particularly if they are already close to them.
The Family Law Act 1975 (Cth) and the relationship between grandparent and grandchild.
In Australia, the Family Law Act 1975 (Cth) deals with separation, divorce, division of property, and who a child lives with, spends time with and communicates with. The law does not contain rights for parents or grandparents but prioritises the rights of children.
The Family Law Act 1975 (Cth) 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” (which may include a grandparent or other extended family).
A parenting order does not only concern who a child lives with but includes other issues, such as who a child spends time with and how they communicate with family.
Where the child’s parents are not facilitating a positive relationship between the child and their grandparent, since the child cannot enforce that right, it is up to the grandparent to take action to make that happen.
A grandparent can apply to the court for:
- orders relating to the communication they have with their grandchild – either by telephone, email, letters, gifts, Skype, Facetime etc;
- orders relevant to physical time spent together – whether that be visits during the day, overnight stays, weekends, school pick up or drop off, school holidays etc.
In situations where there is a dispute, a court will consider whether it is in the best interests of the child to spend time with a grandparent.
As stated in section 60CC of the Family Law Act 1975 (Cth), when making a determination in relation to a dispute, the court will give consideration to the child’s best interests.
Primary considerations are stated as:
(a) the benefit of the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these primary considerations, the court will give greater weight to the consideration set out in paragraph (b) above.
What can you do if you are denied time with your grandchild?
The best way to ensure an ongoing relationship with a grandchild is to maintain a good relationship with the child’s parent. If an agreement can be reached about a grandparent communicating or spending time with their grandchild, it can be put into a parenting agreement.
If an agreement cannot be reached between the parent and the grandparent, the first step to resolving the dispute is to attempt to agree the matter through participation in mediation or family dispute resolution.
The object of mediation or family dispute resolution is to encourage those involved to make a genuine attempt to try to resolve the dispute taking into consideration the basis upon which orders can be made by the Court.
If a resolution cannot be reached through mediation, or the parent refuses to attend mediation, the grandparent will need to go to court seeking an order about them spending time with their grandchild.
Grandparents, during divorce or separation, can often be a constant for the child during times of change and turmoil. It is comforting to know that, just because the relationship between the parents or caregivers has changed, it is possible for a grandparent to maintain the kind of relationship they have always enjoyed with their grandchild.