DO GRANDPARENTS HAVE SPECIAL ENTITLEMENTS TO SPEND TIME WITH OR COMMUNICATE WITH GRANDCHILDREN?
The short answer is yes, the Family Law Act specifically recognises grandparents. In year 2006 the Family Law Act 1975 recognised the importance of the role that grandparents often play in a grandchild’s life and the right of a grandchild to spend time on a regular basis with grandparents who are significant to their care, welfare and development. These principles are set out in s.60B(2) of the Family Law Act 1975 and unless it would be contrary to a child’s best interests, a child has the right to regularly spend time and communicate with “other persons significant to their care, welfare and development such as grandparents and other relatives…”.
We have previously acted for grandparents wanting to spend time with their grandchild but who were having difficulties in doing so because of the conflict caused by the breakdown of the relationship between the child’s parents. In that case our client grandparents had an established relationship with their grandchild prior to the difficulties arising and it was clear that the grandparents were important people in the child’s life. Ultimately, there was a happy result for the grandparents and the child as we were able to successfully obtain court orders for the grandparents to spend regular time with their grandchild.
However, the Court does not always make court orders for grandparents to spend time with grandchildren.
In 2013 a Brisbane Federal Circuit Judge (Judge Lapthorn sitting in Toowoomba) decided that an application by a grandmother to spend time with her grandchildren, in circumstances where both the children’s parents strenuously opposed the grandmother spending any time with the children, was summarily dismissed. In other words, the Judge decided to end the application without allowing it to proceed to a final hearing. The particular facts of the case lead to the decision but the Judge’s reasoning was partly that:
“34. When I weigh up: the fact that 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.
35. For these reasons I am not satisfied the grandmother has any reasonable prospect of successfully prosecuting her application and I would summarily dismiss her application.”
In that case the Court needed to consider if it was contrary to a child’s best interests if the grandchild was required by court order to spend time with the grandparent in circumstances when both parents had exercised their parental responsibilities in deciding that the child would not spend time with the grandparent. The Court considered that because the grandchild was of a very young age and did not have any prior relationship with the grandparent and both the child’s parents had made the decision in exercising their parental responsibility for the upbringing of the child by the child not spending time with the grandparent to commence a relationship, that the Court should not interfere with the child’s parents exercising their responsibility as parents of the child.
If you need help with parenting arrangements, whether as a parent, grandparent or other person contact us to arrange mediation or if necessary help you apply to the Courts.
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