We know that family law disputes are often tumultuous with so many people, quite apart from the 2 spouses and children that are caught in the crossfire. One such group, is grandparents and they often ask, what about our rights in relation to the grandchildren? In this podcast, OMB Solicitors’ Gary Mallett answers the question.
Dan: Gary, do Grandparents have rights?
Gary: The short answer is YES, and equally the grandchildren have rights under the Family Law Act to communicate and spend time on a regular basis with any person concerned with their care, welfare or development, including grandparents and other relatives.
The law, therefore, recognises the rights of the children to continue to have a relationship with their grandparents after separation of their parents.
As a result, grandparents are given the specific ability to apply for a parenting order for their grandchildren under 65C of the Family Law Act.
The best interests of each child will be the most important consideration in any case about care arrangements for grandchildren. It is the needs of each child and their right to spend time with both parents and other significant adults such as grandparents that are considered.
All care arrangements for the grandchildren must also be practical and must keep them safe from family violence and child abuse.
A grandparent does not therefore automatically have the right to spend time with their grandchildren or have their grandchildren live with them, particularly if it is not in the best interests of the children for that to happen.
As a grandparent, you may find yourself concerned about the welfare of your grandchildren.
You may be concerned that your grandchildren are being exposed to domestic violence, or that they are being abused, in their household.
Alternatively, your grandchildren’s parents may have separated, and the parent with whom the children are living may be refusing to allow your grandchildren to spend time with you.
In a further scenario, you might find yourself caring for a grandchild, either on a short term or long term basis because neither of the parents of that child is able to do so, because for example:
1. One or both of child’s parents have drug, alcohol or mental health problems;
2. Both of the child’s parents are deceased;
3. The parents are in jail;
4. The parents are working or studying away from home; or
5. The child has been removed from the care of their parents by Department of Child Safety officers, and placed with you.
Dan: Why would a grandparent need a parenting order in a situation where they already have the care of a grandchild?
Gary: If you have a grandchild or grandchildren in your fulltime care, you may still need to have parenting orders made for you to have parental responsibility for your grandchild or grandchildren, and for an order that they live with you for the following reasons:
• to provide evidence of care for Centrelink purposes:
• to enroll a child at school or in kindy;
• to enable you to apply to the court for a recovery order if a child is taken from your care;
• to consent to medical treatment for a child.
• to apply for a passport for a child.
Dan: What can Grandparents do in situations where care arrangements for their grandchildren are in dispute?
Gary: The first step, if your grandchildren’s parents are still alive, is to attempt to reach an agreement with the parents about the grandchildren spending time with you, or for you to have parental responsibility for grandchildren and for the grandchildren live with you, whatever the case may be.
This agreement can be reached by engaging solicitors to act for you to attempt to negotiate an agreement with the children’s parents, or by attending a family dispute resolution conference with both parents through a mediation organised by your solicitors, or through a government or community funded centre such as a Family Relationships Centre, Relationships Australia or Centacare.
If the parents are already involved in contested litigation in a family court over the children, it may be necessary for you to apply to the court to become a party to those court proceedings.
If you have been able to reach an agreement with the parents of your grandchildren about your involvement in the children’s care arrangements, then that agreement can be formalised by incorporating it into a written parenting plan for the children.
However, a parenting plan is not enforceable by the Court.
A parenting plan, does not give a grandparent any enforceable right to be able to spend time with their grandchildren, or to have parental responsibility for them.
I always recommend that grandparents go one step further and consult a solicitor to draw up the parenting plan as consent orders, and file an application in the Family Court for consent orders to formalise the agreement in the parenting plan.
Consent orders can be enforced by the Court, and a grandparent will need these orders if there is any concern about one or both of the parents sticking to the agreement that you have reached with them about your grandchildren.
If you cannot reach an agreement with the parents of your grandchildren, or both parents are deceased, then you will need to apply to the court for a Parenting order for your grandchildren. You will need a solicitor for this application to give yourself the best prospects of success.
A parenting order can cover:
• Who is to have parental responsibility for the grandchildren;
• With whom the grandchildren children are to live;
• who the grandchildren spend time and communicate with and how often;
• What orders need to be made to safeguard the grandchildren from exposure to family violence and child abuse;
• schooling or childcare for the grandchildren;
• medical issues;
• religious or cultural practices;
• financial support for the children; and
• how those with parental responsibility will communicate with each other.
Family law is a unique and specialised field of law, and legal advice and assistance is always recommended.
In particlar, legal advice should be immediately sought in the following circumstances:
• If you or your grandchildren are at risk of harm;
• There is an existing parenting dispute over the grandchildren that is in Court, and you need to apply to become a party to the proceedings;
• You have a parenting plan that you wish to made into consent orders;
• You have been presented with Consent Orders and have been asked to sign them;
• You need to apply to the Court for a parenting order because you cannot reach agreement
with the parents of the grandchildren, or because those parents are deceased;
• Before you appear in court;
• If you have an existing court order and you want to make changes to the arrangements for your grandchildren;
• if you disagree about what’s in the best interests of the grandchildren;
• if you believe that you have been bullied, tricked, intimidated, coerced, threatened or forced into signing consent orders; or
• if you have a grandchild in your care and you wish to seek child support. Child support can be another complex part of family law, and it is important to get legal advice about child support issues before you apply.