Grandparents often play a vital role in the lives of their grandchildren, offering guidance, caring for the child, love, and support. However, conflicts or breakdowns within families may lead to strained relationships and disputes over access on a regular basis to grandchildren.
In Australia, the legal framework acknowledges the significance of these relationships and provides avenues for grandparents to seek visitation rights.
In Australia, grandparents do have rights to maintain a relationship with their grandchildren. The Family Law Act 1975 recognises the importance of a child having a meaningful relationship with their extended family, which includes grandparents. That is, a relationship with their grandparents. However, these rights are subject to the best interests of the child and the circumstances of each case.
Most parents who are separating can reach an agreement regarding various aspects of their children’s lives, such as their living arrangements, visitation, communication, schooling, holidays, medical treatment, and more. This agreement can be informal, without the need for any written documents or legal proceedings.
Alternatively, parents can choose to formalise these decisions by creating a written agreement known as a parenting plan. A parenting plan outlines the specific arrangements for their children for their care welfare and development. They can also opt to make the agreed-upon arrangements more legally binding by preparing consent orders and having them approved by the Federal Circuit and Family Court of Australia (FCFCOA). That is obtaining those court orders.
If you are a grandparent and have concerns about maintaining the same level of contact with your grandchildren after their parents separate, it is advisable to discuss the possibility of including you in a parenting plan or consent orders. This is possible should the parents decide to create such documents. However, it is crucial to always prioritise the best interests of the children and consider the practical aspects of implementing the agreed-upon arrangements.
In cases where parents are unable to agree on child-related matters directly or with the assistance of a family dispute resolution service, they have the option to seek parenting orders from the court (FCFCOA). Similarly, if you and the parents cannot come to an agreement regarding the level of contact you will have with your grandchildren, you can also apply to the court for parenting orders specifically concerning your involvement with the children.
When determining grandparents rights to see their grandchildren and other family law matters, Australian courts consider various factors, including:
Courts assess the nature and extent of the grandparent-grandchild relationship, taking into account factors such as the frequency of contact, emotional bond, and the role played by the grandparent in the child’s life.
Child’s best interests
The primary consideration in Australian family law is the best interests of the child. Courts evaluate how the proposed contact with grandparents will impact the child’s emotional and psychological well-being, safety, and overall development.
While grandparents have the right to seek visitation, courts respect parents’ rights and decisions regarding their children. Therefore, the court will also consider the reasons put forward by parents who may object to grandparent visitations. The court’s primary considerations are:
It is important to prioritise protecting children from harm over ensuring their meaningful relationship with both parents. Additionally, the court takes into account:
If grandparents wish to apply for visitation rights in Australia, the following steps are usually involved:
Before commencing legal proceedings, it is generally expected that parties will attempt family dispute resolution, such as mediation or counselling. This aims to facilitate negotiation and reach an agreement without resorting to court intervention.
Obtaining a Family Dispute Resolution Certificate
If mediation is unsuccessful or inappropriate, grandparents must obtain a Family Dispute Resolution Certificate from an accredited family dispute resolution practitioner. This certificate is required to initiate court proceedings unless there are exceptional circumstances.
Grandparents can file an application seeking visitation rights with the Family Court of Australia or the Federal Circuit Court. The application should be supported by relevant evidence, including details of the grandparent-grandchild relationship, reasons for seeking visitation, and any factors supporting the child’s best interests.
Once the application is filed, court proceedings will be initiated. Both parties will present their arguments and supporting evidence before a judge. The judge will consider all relevant factors and make a decision based on the best interests of the child.
Before initiating any legal action, it is advisable to seek legal advice. This advice should cover the strength of your case, the necessary forms and supporting documents (such as affidavits) that need to be submitted to the court, the appropriate orders to request, the suitable court to file your case, and the associated costs.
If your case proceeds to court, a hearing will take place where the court will determine the best interests of the child, considering the factors mentioned earlier. The court may also require the parties involved to continue attempting to resolve the dispute on their own.
In certain situations, the court can appoint an independent children’s lawyer (ICL) to represent the child’s interests. The role of the ICL is to independently assess what is in the child’s best interests and convey the child’s wishes to the court. Additionally, the court may appoint a family consultant, typically a counsellor, social worker, or psychologist, to interview and observe the parties and the child, and prepare a family report for the court. The duration of court proceedings can be extensive, depending on the complexity of the case, starting from the date you file for final orders. However, interim (temporary) orders can be issued in the meantime.
While it is possible to represent yourself in court, however legal proceedings can be intricate and perplexing. Therefore, it is still highly recommended to seek legal advice from top family lawyers in Sydney regarding the appropriate actions to take and how to prepare your case.
Accordingly, in Australia, grandparents do have rights to maintain a relationship with their grandchildren, provided it is in the child’s best interests. The Family Law Act recognises the importance of extended family connections, including the bond between grandparents and grandchildren.
If a grandparent wishes to seek visitation rights, they can follow the appropriate legal process, including mediation and court proceedings. Consulting with a child custody lawyer can provide guidance and support throughout the application process, ensuring the best possible outcome for both grandparents and grandchildren.