Grandparents & Mediation | Family Law Mediator

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What rights do grandparents have if they are prevented from seeing their grandchild?

Extended family, in particular grandparents, often play a huge role in a child’s life. Often Grandma and Grandpa can provide babysitting, cooking lessons and spend significant and meaningful time with a child. But what happens when this picture-perfect family situation goes a little awry? Causing great discord and distress in a family are common scenarios:

The separation of parents, resulting in Grandma and Grandpa not getting to see their grandchild very often; or
Disagreements between the parents and grandparents, resulting in the parents not wishing the grandparents to spend time with the children.

On these occasions, what rights do grandparents, parents and the child have? What can be done to resolve the conflict?

What are grandparents’ rights?

Grandparents’ rights are not an automatic right
It is in the best interests of the child to know and be cared for by both parents and by grandparents
This is applicable whether parents are separated or together

Grandparents do not have an automatic right to have contact with or see their grandchildren. The Family Law Act 1975 (Cth) allows the Family Court to make orders in “the best interests of the child”, and grandparents are specifically permitted in the Family Law Act 1975 (Cth) to apply to the Family Court for orders relating to their grandchild, specifically for their grandchild to live with or spend time with them regardless of whether the child’s parents are separated or still together. The Family Court, through the Family Law Act 1975 (Cth), recognises that a grandparent-grandchild relationship is an important one, and that a child has the right to know and be cared for by not only both their parents but other significant people including grandparents and other close relatives. However, the best interests of the child will be the deciding factor. A grandparent should always seek legal advice before commencing any action in the Family Court.

What are grandparents’ rights when their grandchild’s parents are separated?

Grandparents can request to be included in parenting arrangements (either Parenting Plan or Consent Orders)
Grandparents may apply to the Family Court for Parenting Orders
Family Dispute Resolution is a requirement for grandparents seeking Parenting Orders from the Family Court

Parents can make the arrangements (either formally or informally) for their children when they separate (click here for further information). The arrangements will include who the child will live with, spend time with, and communicate with. A grandparent may have a great relationship with both of the child’s parents and may not feel that they need to be included in documenting the arrangements. However, if a grandparent has doubts about the time that they will be allowed to spend with their grandchild, they can request that they be included in the Parenting Plan or Consent Orders. If the grandparent and the parents cannot reach agreement about the time that the grandparent will spend with the child, then the grandparent may apply to the Family Court for Parenting Orders to be made about their grandchild. All the requirements of an Application for Parenting Orders will apply, including compulsory Family Dispute Resolution (or mediation) prior to the lodgement of an Application by a grandparent.

What are grandparents’ rights when their grandchild’s parents are not separated?

Grandparents can still apply to the Family Court for Parenting Orders
The Family Court will assess if ongoing conflict between the grandparent and the parents will not be in the best interests of the child

Even if the parents are not separated or in the process of separating, the grandparent is still entitled to apply to the Family Court for Parenting Orders to be made. This can occur where the parents and the grandparent may have had a disagreement and the parents are not allowing the grandparent to have contact with the child. It is important to note that the Family Court will be reluctant to impose contact with a grandparent if they believe that the ongoing conflict between the grandparent and the parents would not be in the best interests of the child.

What should grandparents do if they have been caring for their grandchild?

Grandparents should formalise any informal arrangements through Consent Orders or Parenting Orders

If a grandparent has been informally caring for their grandchild with the parents’ agreement, then it is wise for that agreement to be formalised by Consent Orders, in case any issues arise in the future. Further, if a grandparent believes that it would not be in the child’s best interests to return to living with the child’s parents, then the grandparent should consider making an application to the Family Court for Parenting Orders. If Family Court Orders (either Parenting Orders or Consent Orders) are in place, then a parent or grandparent wishing to have these changed will have to apply to the Family Court to have these varied.

What should grandparents do if they have safety concerns about their grandchild?

If a grandparent has concerns about the child’s welfare or safety, then they should consider:

Speaking with the police;
Making a report to Child Safety Services; or
Making an application to the Family Court for Parenting Orders.

Before a grandparent takes any action, they should seek legal advice as to their rights and the options open to them.

Why grandparents should attend mediation over litigation?

It is in the best interests of a child for parents and grandparents to maintain (or try to salvage) the relationship between parents and grandparents
Parents and grandparents should first attempt to reach agreement with one another
If unable to reach agreement, parents and grandparents should attend Family Dispute Resolution
An application to the Family Court for Parenting Orders should be considered as the last resort

Although grandparents do not have an automatic right to spend time or have contact with their grandchild and although they can take legal action, sometimes this may not be in the best interests of all parties involved, particularly where the parents are not separated but the grandparent’s relationship with the parents has broken down.

It is important to keep in mind that the Family Court is always the last resort, as not only is the process lengthy and expensive, it most likely will cause further conflict and even prevent any reconciliation in the parent-grandparent relationship.

After a grandparent has sought legal advice, they should attempt to speak with the parents and reach agreement about the child contacting or spending time with them.

If reaching out to the parents is unsuccessful, then the next step would be dispute resolution. The Family Law Act 1975 (Cth) requires the parties to attempt Family Dispute Resolution (or mediation) before they can make an application to the Family Court. In this way, we can assist both grandparents and parents in discussing their differences and attempting to reach a resolution. This is often the best course of action, as it allows the parents and grandparent to explore the different practical solutions to the problem at hand without a judge handing down an arbitrary decision that may be resented by either or all the parties involved. If an agreement is reached, we assist you in formalising it as draft consent orders, which can then be filed with the Family Court and ratified as Consent Orders.

If no agreement is reached at mediation, then the grandparent may make an application to the Family Court for Parenting Orders.

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