Are you a grandparent? Your legal rights explained.
You may be a grandparent who is caring for or raising your grandchildren. You may be a grandparent who is concerned about your grandchild’s safety or well-being. Or you may have been stopped from seeing your grandchildren and would like to know what you can do about it.
What is Family Law?
The Family Law Act 1975 is the law that applies across Australia to separation and divorce, division of property and who children live and spend time with when their parents separate, whether or not their parents were married.
Grandparents can use the Family Law Act to apply to court for orders that their grandchildren live with or spend time with them. You can do this whether the parents of the children are together or separated.
The Family Law Act acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Family Law Act as being able to apply to a court for orders to do with their grandchildren. However, it is important to be aware that this does not mean that grandparents (or indeed parents) have an automatic right to have contact with the children.
The Family Law Act makes it clear that the ‘best interests of the child’ is the main consideration when it comes to decisions about parenting. The focus of the Family Law Act is on the rights of children to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
How are arrangements for children made when their parents separate?
Most separating parents can agree about who the children will live with, spend time with and communicate with and about other aspects of the children’s lives (such as where they will go to school, holidays, medical treatment and so on). This can be done informally, without any documents and without going to court.
These decisions can also be put into a written agreement called a Parenting Plan that sets out the arrangements for the children. Or the parents can make the agreed arrangements for the children more formal by writing up what are called Consent Orders and registering them with the Family Court.
If parents cannot agree on arrangements for children between themselves, or with the help of a family dispute resolution service, they can apply to the Court (currently the Family Court, Federal Circuit Court or Local Court) for Parenting Orders. If you and the parents cannot agree on what contact you will have with the children you can also apply to the Court for Parenting Orders about your grandchildren.
Although you have a right to apply to the Court for Parenting Orders this does not mean that the Court will make an order in your favour. You should get legal advice before you do this.
Are you being stopped from seeing your grandchildren?
Sometimes grandparents are stopped from having a relationship with their grandchildren. This can happen where the relationship with your own child has broken down (but the parents’ relationship remains intact), or where the parents have separated and one parent refuses to let you have anything to do with your grandchildren. It can also happen if you have been the primary carer for your grandchildren and the children’s parent returns to take the children back into their care.
Grandparents do not have an automatic right to have a relationship with a grandchild. However, anyone who has an ongoing relationship with the child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for Parenting Orders.
If your child and/or their partner is refusing to let you see or speak to your grandchild, you can take steps to try to change the situation.
Source: Family Court of Australia