Nina Ivanov

Nina talks us through Grandparents Rights

Grandparents have rights tooGrandparents often play an important role in their grandchildren’s lives. This role can sometimes be interrupted by divorce or separation of the child’s parents. It is important that grandparents know their rights when these situations occur.

How Grandparents are seen under the Act

The Family Law Act 1975 (‘the Act’) provides that children have the right to maintain relationships with people that are important to their care, welfare and development.

In 2000, the Howard Government introduced changes to the Act, whereby grandparents are explicitly recognised as falling within this class of people.  Prior to 2000, there was no specific reference to grandparents within the Act.

But what can grandparents do to enforce their rights if they find themselves caught in the middle of a dispute between parents, and shut out from their grandchildren’s lives?

Interestingly, the Act does not focus on the rights of grandparents, or indeed parents, but focusses on the best interests of the child, which are governed by section 60CC of the Act. Accordingly, grandparents (and other third parties) do not have an automatic right to see, care for or communicate with the subject children. However, pursuant to the Act, grandparents do have what is referred to as standing, that is the right to apply to the Court for Orders regarding their grandchildren.

Applying to Court

Broadly speaking, there are two main types of Orders that can be sought in respect of children. These are:-

  1. Applications to spend time with and communicate with grandchildren – These are often applied for when parents prevent the development or continuation of a meaningful relationship between grandparents and grandchildren.
  2. Applications to obtain parental responsibility for children, and relating to who the children are to live with – These are less commonly sought, and mainly arise in circumstances where the children’s parents are unable or unwilling to care for the children.

Orders can be sought by grandparents whether or not the children’s parents remain in a relationship or are separated.

It may not be necessary to initiate Court proceedings to obtain Orders providing for grandparents to see, spend time with and communicate with their grandchildren, or in respect of parental responsibility and lives with orders.

If the children’s legal guardians (usually the children’s parents) and the grandparents can reach agreement, then the agreement can be drawn up as a formal document known as Consent Orders.  The Consent Orders can be filed with the Family Court of Australia. Once sealed by the Court, the Order is binding and enforceable.

If agreement cannot be reached, it may then be necessary to initiate legal proceedings. However, it is generally necessary to attempt to resolve the dispute through mediation before filing an Initiating Application.

How can a Family Lawyer help?

If you have been prevented from having a meaningful relationship with your grandchildren, come in and speak with one of our experienced Family Lawyers who will be able to give you personalised advice about how to best seek to remedy the situation so that you can resume your relationship with your grandchildren.