Grandparents have rights too!
Dec 09, 2011 | Frank Carroll
Senior Australian family lawyer Frank Carroll discusses the important role grandparents play in the lives of children and how Australian family law affects grandparents' rights.
In Australia, grandparents have legal rights to approach courts under the Family Law Act 1975 (Cth) for orders that they be allowed to spend time with their grandchildren. It is important to note that grandparents (and other significant adults in the lives of children) do not have an automatic right to spend time with children, rather they have standing to seek orders from the Courts.
That grandparents should so frequently have to resort to court action to see their grandchildren is cause for alarm and an indication that something is going awry in Australian society.
Grandparents’ reasons for seeking the intervention of the Family Courts to see their grandchildren are many and varied but usually involve being unjustly excluded from the lives of their grandchildren.
In many instances the only times grandparents can see their grandchildren are at school events such as sports days and speech nights but clearly this is not good enough for either the children or their grandparents.
Unfortunately, some parents take an ill informed disliking towards the grandparents of their children and want to fence the children off from other family members. It is important that children have the opportunity to interact with their grandparents and other relatives to understand their heritage and to receive a balanced view of the world.
Family lawyers are often approached by concerned grandparents who are seeking advice on how to break through these unreasonable barriers set up by parents who try to exclude “interfering” grandparents. Fortunately the Family Law Act 1975 (Cth) provides some options for these concerned grandparents.
In order to obtain an order from the Court to ensure children spend meaningful time with their grandparents, the latter must demonstrate to the court that they are significant adults in the lives of the grandchildren and such time would be beneficial.
In many cases well meaning grandparents who make such an application to the courts come up against vigorous opposition from the parents of the children in question. There are many reasons for such opposition but alcohol, abuse, drug addiction, family & domestic violence and poor relations between the grandparents and their own children (the parents of the grandchildren) are often at least partially to blame.
In cases such as these, a Family Consultant may be required to prepare a family report for submission to the court, to assist the court in deciding whether to grant a parenting order for the grandparent applicant. If a family consultant can not be agreed upon by consent between the grandparents and the parents of the grandchildren, the Court can appoint a Family Consultant.
When the family consultant has prepared a family report, the consultant will make a recommendation to the court as to what an ideal parenting situation may look like and, importantly, whether the children would benefit from spending time with their grandparents.
Prior to court action, the parties are required to attend mediation to attempt to resolve the matter out of court. Mediation may occur at a Family Relationships Centre or with an appropriately qualified counsellor or other mediator. If an agreeable result cannot be reached in mediation, the matter may proceed to be heard in court.
An added benefit of mediation is that parties are provided with an opportunity to thoroughly consider their positions and reconsider their objectives and stances before expensive and stressful litigation commences in court.
At all stages throughout mediation, litigation and more generally, grandparents must remember to not criticise parents in front of their grandchildren, as this can have a negative effect on their development.
It is important that grandparents who seek to apply to the court for parenting orders obtain advice from a suitably qualified legal professional and, preferably, from a registered relationships counsellor too.
As a grandparent and experienced family lawyer, I encourage grandparents to play an active part in families - if you encounter obstruction, make sure you get property advice early.
About the Author
Frank Carroll has been practising family law since 1976 and has always found satisfaction and meaning in guiding his clients through their challenges.
In addition to his role as Managing Partner of Carroll Fairon Solicitors, Frank is honorary solicitor to a number of community groups and has a distinguished track record of giving up his time and providing his expertise for the benefit of those less fortunate.
This article is general information only and is not legal, medical or psychological advice. Consult an Australian Legal Practitioner via Love Law Online Legal Consultations to obtain legal advice for your unique situation.