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Grandparent rights – a grey area

28 May 2021

A child’s relationship with their grandparents can bring a special joy to everyone involved, but in the event of a family separation, what rights do grandparents have? Under the Family Law Act, grandparents do have a legal right to make an application to spend time with their grandchildren. However, grandparents should be aware that the court will be inclined to give more weight to the wishes of parents, before grandparents.

In one recent case, the paternal grandmother was seeking to spend time and communicate with her grandchildren, who were aged four and five at the time.

The children’s half-brother – the father’s child from a previous relationship – was also living with the grandmother. The half-brother had a “compromised” relationship with the father.

The grandmother said it was in the best interest of the children to spend time with her and for them to develop a relationship with their half-brother and their extended paternal family.

However, the grandmother acknowledged she had not spent time with, or communicated with, her young grandchildren for at least 18 months prior to the court application.

The children’s parents had no relationship with the grandmother and they were united in opposing her application to spend time with them. They were also opposed to the children spending time with their half-brother.

The parents sought that the court dismiss the grandmother’s application, on the basis that it had “no reasonable prospect of succeeding”.

The grandmother argued that if the matter was to progress to a final hearing, or at least as far as the preparation of a full family report, she would establish it was in the best interests of the children to spend time with her.

Grandparents are included with other relatives under the Family Law Act 1975, as being recognised as an example of a class of people that children have a right to spend time with, given that they are significant to their care, welfare and development.

But the court very much has to balance the roles of relatives, particularly grandparents, against that of the parent and be cautious about interfering when parents exercise their parental responsibility especially when they are united about decisions.

In this case, the Judge said: “When I weigh up – the fact the children do not have a relationship with their grandmother; the extent of the parents’ opposition to starting such a relationship; their joint exercise of parental responsibility in not wanting the children to have that relationship; and the potential for ongoing conflict; with – the potential benefit to the children of developing a relationship with the grandmother and extended paternal family; and the benefit to them of having a fuller understanding of their identity, I am satisfied that the former significantly outweighs the latter.

“It is a parent’s duty to ensure that the best interest of the children is being met at all times, and if the parents feel that the child spending time with the grandparents is not beneficial, then the court would be reluctant to get involved.”

The Judge dismissed the grandmother’s application for time with the grandchildren.

If you would like advice about access to your grandchildren, or any other family law matter, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]

2021-05-28T14:28:06+10:00

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