With most families these days having both parents working – the childcare assistance that grandparents can provide often has them playing a big role in their grand-children’s lives. So – what happens if a couple separates and the grandparent can no longer see the grandchildren?
Do grandparents have rights?
The parenting provisions in the Family Law Act are based on a child’s right to see their parents and other family members. Grandparents are becoming increasingly involved in the care and support of their grandchildren while parents work. So what happens for grandparents if in their child’s separation they find themselves excluded from the grandchild’s life?
Grandparents have the right to make an application to the court for time with grandchildren. In fact, grandparents are specifically referred to in the legislation as people who may apply for orders to ‘spend time’ with children or to have children ‘live with’ them.
How does the Family Law Act apply?
The Family Law Act provides that a parenting Order may be applied for by:
- either or both of the child’s parents;
- the child;
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
Accordingly, grandparents are able to make an Application to the Courts for parenting Orders. A parenting Order can be made in relation to where a child is to live, the time they spend with significant people (such as grandparents) and issues such as education, medical treatment, the allocation of parental responsibility and other such issues.
In cases relating to parenting Orders, the paramount consideration of the Court will be what is in the best interests of the child.
Parental responsibility means all the duties, powers, responsibilities, and authority, which, by law, parents have in relation to children.
Unless a Court Order specifically provides to the contrary, each parent of a child under 18 years of age has parental responsibility. However, grandparents do not automatically have parental responsibility. Unlike parents, the Family Law legislation does not make any presumptions in relation to parental responsibility in relation to grandparents.
Each case has unique circumstances, which will be considered by the Courts prior to making an Order about parental responsibility.
What are the best interests of a child?
When considering a parenting matter, the Family Law Act is clear that the paramount consideration should be “what is the best interests of the child”. The objects of the Law in terms of parenting arrangements are to ensure that the best interests of children are met by:
- Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests; and
- Protecting children from physical or psychological harm; and
- Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Family Law Act provides an extensive list of factors that are considered when determining what is in a child’s best interests, these include:
- The benefit to the child of having a meaningful relationship with both of the child’s parents;
- The need to protect the child from physical or psychological harm;
- Any views expressed by the child;
- The child’s relationship with both parents and any other person (such as grandparents or other relatives);
- The willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship with the other parent;
- The likely effect of any proposed change to the child’s circumstances;
- The practical difficulty and expense of a child spending time with a parent;
- The capacity of the child’s parents to provide for the needs (i.e. emotional and physical) of the child;
- If the child is of Aboriginal and Torres Strait Islander decent:
a) The child’s right to enjoy his or her culture; and
b) The likely impact of making any parenting Order will have on that right;
- The attitude to the client and the responsibilities of parenthood demonstrated by each of the child’s parents;
- The terms of any Family Violence Order (i.e. Domestic Violence Protection Order);
- Whether it is in the child’s best interests to make the Order which would be least likely to lead to the institution of further proceedings in relation to the child; and
- Any other fact or circumstance that the Court thinks is relevant.
There is no fixed outcome to be expected in relation to the best interest of children, no presumption that either parent is better equipped to care for a child, and no presumption as to what time a child should spend in relation to each of his or her parents. As you can see, what is in the best interests of a child depends on the personal circumstances of that unique child.
Q: Can a parent deny a grandparent time?
A: As mentioned above, a child has a right to spend time with people significant to their care, welfare and development – this includes grandparents – except when it would be contrary to the child’s best interests.”
Grandparents don’t have a right to maintain a relationship with a grandchild, the grandchild has the right to maintain a relationship with their grandparents. It is this right, among others, that is considered when an application is made for a court order to include or exclude a grandparent in a child’s life. The facts of each case will be different.
Q: Can grandparents go to mediation?
A: If a grandparent wishes to apply for a court order, they are required to attend mediation and demonstrate a genuine effort to resolve the matter. See our Family Mediation services page Generally, the Family Law Act encourages people to manage conflicts among themselves and to use legal processes as a last option.
Q: What happens if a parent doesn’t comply with an order for the grandparents?
A: Court orders are binding and non-compliance enables the aggrieved party to go to the court to seek a Contravention order. A Contravention application can result in a range of potential penalties. For minor breaches, the court can require parties to attend parenting programs, provide compensatory contact time for lost time with a child, change orders to favour the aggrieved, and apply financial penalties. For serious offences, the court can order community service, fines or imprisonment.
Q: Can grandparents get financial assistance?
A: This raises the issue of Child Support. Child Support is administered by the Child Support Agency. The Agency has a formula that is applied to calculating what should be paid. It relies heavily on who has the primary amount of time caring for the child. If you have at least 35% care of your grandchildren you may be entitled to child support. The percentage of care you have is calculated based on the number of nights that the children are expected to stay with you over the following 12 months. The number of nights is then calculated as a percentage over the whole year.
Speak with One of Queensland’s Largest Family Law Firms
To get in touch with a lawyer who is experienced in grandparents matters in Brisbane, contact us on (07) 3221 4300. As one of Queensland’s largest family law firms, our combined knowledge of divorce law is exceptional. Contact our Brisbane City office today to find out how we can assist you.