RMB Articles

Grandparents and the Family Law Act

Posted 29-02-2016
Written by admin 101
Category Family Law

When families separate, it is not only parents who experience difficulty spending time with their children.

In some circumstances grandparents also feel deprived of a relationship with their grandchildren.

A grandparent's relationship with a grandchild is usually facilitated by the child’s parents.

However grandparents may not be able to spend time with their grandchildren in instances including relationship breakdown between the parents, a death of one or both parents or a relationship breakdown between the parents and the grandparents.

When this happens there is an obligation on the grandparent(s) to attempt (if possible and applicable) to participate in Family Dispute Resolution with one or both parents of the child to see whether an agreement can be reached, so that the relationship between the child and their grandparent can continue.

If no agreement can be reached, then the Family Law Act specifically recognises the importance of the relationship between a grandparent and a child. Grandparents can make an application for a parenting order (to live with or spend time with the child), a location order (to locate a child who has been taken away) or a recovery order (which provides for the immediate location and return of a child who has been improperly taken away).

Altough the Family Law Act recognises the important relationship that should be fostered between grandparents and their grandchildren, that does not mean that the Court will always be satisfied that making an order for the child to spend time with their grandparent will be in their best interests and the best interests of the child (which is the primary consideration for the Court).

In fact there have been cases where some grandparents have been left very disappointed after making an application to spend time with the grandchildren. Reasons for unsuccessful applications include a past and/or present history of conflict and disharmony between the grandparents and the parents of the child. Usually the Court has found that these applicants are acting in a disruptive or negative way that is not in the best interests of their grandchildren. 

It appears that in the absence of substantive issues as to the child's best interest, the Court does not see its role to look over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children.

However the Court may make an order in favour of a grandparent who had a meaningful relationship with the child previously and if, for example, one parent is acting unilaterally following a relationship breakdown or death of the other parent to isolate the child from their paternal or maternal family. The grandparent usually needs to demonstrate that they are acting reasonably and responsibly and that their continued relationship with their grandchild is in the child’s best interests.

Each case will ultimately be decided on its own facts and what is in the best interests of the child. Because Court is such a time consuming and expensive process, so it is usually best to try to resolve issues like this informally without the need to seek a Court's determination.

If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist family lawyers.