When a relationship breaks down it can sometimes be difficult for grandparents or other relatives to maintain contact with the couple’s children. This can be particularly concerning for grandparents who may have previously played a significant role in the children’s lives.

Legal recognition for grandparents and relatives

The law recognises the important role that grandparents play in the lives of their grandchildren and it facilitates the involvement of extended family members in the lives of children whose parents have separated or divorced. 

The legislation specifically mentions that, in addition to each of their parents, children have a right to spend time with, and communicate with people who are significant to their care, welfare and development, such as grandparents and other relatives. 

The primary focus of the law will always be whatever is in the best interests of the child (or children). However, when determining what is in a child’s best interest, the Family Court must consider the nature of the child’s relationship with grandparents or other relatives, as well as the likely affect that any change in circumstances would have on the child, including being separated from either parent or a grandparent or other relative that they have been living with.

Maintaining a relationship with grandchildren when the parents divorce or separate

Obviously the best case scenario is where the parents recognise that the grandparents play an important role in their children’s lives and voluntarily allow this to continue. 

However, where this is not the case, grandparents should, in the first instance, try to reach an agreement with the parents in relation to spending time with their grandchildren. Grandparents may choose to contact a Family Relationship Centre, a Family Dispute Resolution Practitioner or a lawyer to help them reach an agreement with the parents in this regard. 

If an agreement can be reached, the parents and grandparents may wish to enter into a Parenting Plan. Parenting Plans are written agreements that deal with things such as with whom the child lives, spends time and communicates. Parenting Plans are not binding or enforceable by law, but if the matter proceeds to litigation, the Family Law Court may take them into account. 

It is important to be aware that only the parents of the children can be parties to a Parenting Plan, which means that any agreement about grandparents’ time or communication with their grandchildren can only be included with the consent and agreement of both parents.

In situations where the parents and grandparents have not been able to reach an agreement, grandparents may wish to seek legal advice about options for spending time with their grandchildren.

Even though grandparents are now specifically recognised under the Family Law Act 1975, this does not necessarily mean that grandparents have a special category of rights. The Family Law Court remains cautious about interfering with the parents’ right to make decisions in relation to their children, and the outcome will ultimately depend on the facts and circumstances of each particular case.

What happens when a Grandparent is the primary care-giver?

If children are living with their grandparents when the parents separate or divorce, the grandparents should seek legal advice about getting a Court Order stating that the grandchildren live with them and that they have parental responsibility for them. Being legally recognised as having “parental responsibility” means that the grandparents will have the right to make long term decisions for their grandchildren, for example, in relation to health and education. 

Previous cases show that when deciding with whom a child should live, the Court does not necessarily make a presumption in favour of a parent. The issue at stake will always be what is in the best interests of the child. One of the factors that the Court must consider in assessing the child’s best interests includes the capacity of the parents, grandparents or other relatives to provide for the needs of the child, including emotional and intellectual needs.

Allegations of abuse or violence against grandchildren

If grandparents have any concerns or reason to believe that abuse or family violence has been committed against the children by their parents, they should notify the police. If applying for a Court Order, grandparents should also file a Notice of Child Abuse or Family Violence as part of their application for the Court Order. 

In these situations, child protection authorities can also apply for Children’s Court Care or Protection Orders, which may result in children being removed from their parent’s care and placed to live with their grandparents or other relatives.