The popularisation and existence of the nuclear family of the early 20th Century has dissipated with the acceptance of the idea that a family can mean different things to different people.
We are seeing an increase in families that have a greater involvement of a child’s grandparents in the day-to-day care of children, whether this be because parents need assistance while working full-time jobs, parents live in separate households or due to alternative family compositions.
In any event, grandparents can play a significant part in a child’s life, and vice versa, and they may wish to ensure this does not disappear in times of the divorce of the child’s parents, or in other family crises, or seek that they themselves have parental responsibility for the child.
Do grandparents have a right to a relationship with a child?
Grandparents do not have an automatic right to a relationship with a child. In fact, no person, including parents, have a right to a relationship with a child. Rather, a child has the right to preserve their family relations pursuant to Article 8 of the Convention on the Rights of the Child. This is a right, among others, that are considered when the Court determines whether grandparents should or should not be included in a child’s life.
Can a grandparent commence proceedings?
The Act allows people who are not the parents of the child, including grandparents or kinship carers, to commence parenting proceedings in the Federal Circuit and Family Court of Australia (“the Court”). Under section 65C(ba), a grandparent is specifically listed as a person who may apply for a parenting order. Furthermore, anyone who is concerned with the care, welfare or development of the child may also apply for parenting orders.[1]
Grandparents can also join proceedings which have already commenced between the parents of the child, to make sure they can continue spending time with the child, or to seek that they have parental responsibility of the child. However, you should obtain legal advice before joining proceedings as it may not be necessary for this to occur.
Best interest considerations
The primary concern for the Court when making parenting orders is whether the orders sought are in the child’s best interests. The Court will have regard to several factors when deciding whether it is in the child’s best interests to live with or spend time with grandparents including the nature of the relationship with the child, the benefit of the child having a meaningful relationship with their parents, and whether there is evidence of any family violence. The Court can decline to make orders if they are not in the best interests of the child.
Interestingly, in Chandler & Bonner [2022] FedCFamC1A 210 the parents attempted to argue that the Court was required to consider s 43 of the Family Law Act 1975 (Cth) (“the Act”), which provides that the Court should have regard to “the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life” and “the need to give the widest possible protection and assistance to the family…”. They argued that the grandmother’s conduct in the past caused stress for them should the children spend time with her, which went against the “protection of the family”. However, it was found that this does not displace the paramountcy of the children’s best interests, nor the considerations under s 60CC that need to be taken into account when determining those interests.[2]
If there is no parent available to care for a child as a result of death, injury or incarceration, the Court has a Critical Incident List which can be used if a grandparent is seeking orders for parental responsibility.
Where should you start?
The Act recognises three (3) main documents through which a grandparent may secure access and communication with, or parental responsibility for their grandchildren:
- Parenting Plan;
- Consent Orders; or
- Orders made by the Court.
The first step is to obtain legal advice as to the appropriate next steps, as these can differ for every family.
As part of the pre-action procedures detailed by the Court, the parties must be able to demonstrate they have made all reasonable and appropriate efforts to resolve their matter prior to commencing proceedings. The primary way this is done is by inviting the parents to attend a mediation, so you can try to come to an agreement in the form of a Parenting Plan, or Consent Orders. This can occur with or without solicitors, and there are various mediation services such as Relationships Australia, CatholicCare, and Interrelate, which you can attend at a low to no cost.
Mediation might not be viable or appropriate in every circumstance, especially if there are allegations of family violence, and the Court allows some exceptions to these pre-action procedures.
If you require legal advice about parenting arrangements as a grandparent, please book a confidential consultation with one of our experienced family lawyers today.
[1] Family Law Act 1975 (Cth), s 65C(c).
[2] Chandler & Bonner [2022] FedCFamC1A 210, [17] (Tree J).
