I am a Grandparent – I am Not Getting Time to Spend with my Grandchildren now that their Parents are Separated

01/02/2021

The Family Law Act provides that children should receive adequate and proper parenting so as to help them to achieve their full potential and to ensure the child’s parents fulfil their duties and meet their responsibilities for the care, welfare and development of the child.  One of the principles underlying this is to ensure that the children have contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development. 

Grandparents can offer an integral part of a child’s life.  They may provide care for the child and assist in promoting the child’s welfare. 

A grandparent is a person significant to the care, welfare and development of a child.  The Family Law Act specially allows grandparents to make an application for Parenting Orders.  As such, a grandparent does have standing to make an Application to the Family Court or Federal Circuit Court for parenting orders.  The need to make this type of application may arise out the disruption caused by the separation of the child’s parents or a relocation to a different community.  A grandparent can ask the Court to make a Parenting Order that provides for the child to spend time with the grandparents. 

What is a Parenting Order? 

The Family Law Act 1975 empowers the Family Court of Australia or the Federal Circuit Court of Australia to make parenting Orders.  Parenting Orders are Orders made in relation to a child or children that deal with one or more of the following:

• The person or persons with whom a child is to live.
• The time a child is to spend with another person or other persons.
• The allocation of parental responsibilities for the child.
• If two or more persons are to share parental responsibilities for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility.
• The communication the child is to have with another person or other persons.
• The maintenance of a child.
• Any aspect of the care, welfare and development of a child or any other aspect of parental responsibility for a child.

Who Can Apply for a Parenting Order?

The Family Law Act allows certain persons to make an application to the Family Court of Australia or the Federal Circuit Court of Australia for parenting Orders. Section 65C of the Act provides that an application may be made by:-

1. Either or both of the children’s parents; or
2. The child; or

(ba)     The grandparent of the child; or

3. Any other person concerned in the care, welfare and development of a child.

Will the Court Always Make Parenting Orders?

In order to proceed beyond the mere making of the Application, the Applicant for a parenting Order must demonstrate that they are a person concerned with the care, welfare and development of the child.  The Court required satisfaction of a threshold test which needs to be determined on the individual facts and circumstances of each case.

The Court states that an Application for a Parenting Order must be made by a person actually interested or concerned in the welfare of the child but not a mere busybody who had no prior involvement or connection with the child. 

There are factors the Family Court or Federal Circuit Court will consider when determining what is in the best interest of a child before they give grandparents contact.  Common considerations might include, what is in the best interests of the child psychologically or physically, whether the child will benefit from the meaningful relationship with the grandparents. 

Watson & Watson have been successful obtaining favourable Parenting Orders on behalf of grandparents who wish to spend time with their grandchildren and other family members who wish to support family relationships.  If you are seeking contact with your grandchildren and are unsure of your rights, our experienced Family Solicitors at Watson & Watson Lawyers can assist.  Please contact Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your matter and obtain appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.