In Brief - Importance of a pre-existing relationship and the
age of the child
The decision of a court about grandparents and extended family
members spending regular time with the children after separation or
divorce is likely to be influenced by the age of the children and
by whether or not a relationship already exists with the
Importance of the rights of children
The law is formulated around the rights of children. Changes to
the Family Law Act in 2006 made it clear that children
have a right to spend time and communicate on a regular basis with
any person who is significant to their care, welfare and
development, such as grandparents and other relatives. This is an
important right, because part of the child's identity stems
from knowing their grandparents and extended family.
Both grandparents and parents should try not to denigrate other
members of the children's family in front of the children and
should be as encouraging as possible for children to spend time
with their grandparents and extended family members on both sides
of the family.
Reaching an agreement with the parents
The best way for grandparents or other family members to ensure
that they continue to have a relationship with a child is for the
grandparent or other family member to speak directly to both
parents to discuss arrangements. This is not always easy when there
is a difficult marriage breakdown, but both grandparents and
parents need to keep in mind that it is the interests of the
children which are most important.
Grandparents and extended family members have access to
Family Relationship Centres and alternative dispute resolution
centres to assist them in negotiating with parents to allow them to
have regular, uninterrupted visits with the children.
Inability to reach an agreement with the parents
If grandparents or extended family members cannot come to an
arrangement with the parents, a
Section 60I Certificate can be issued and they are then able to
make an application to either the Federal Magistrates Court or
Family Court to have orders made for them to see the children.
In most circumstances, the amount of time that grandparents and
extended family members will spend with the children is not the
same as it is for parents. However, a court will be mindful of the
importance of grandparents and extended family members to children
in terms of their identity and their later relationships with their
family, including grandparents, aunts, uncles, cousins and other
persons who have been important in their lives.
Factors likely to influence the court
The likelihood of a court granting grandparents or extended
family members the ability to spend time with children after the
family has separated depends partly on the children's age and
partly on the presence or absence of a pre-existing relationship
with the children.
In the case of an infant, the court is likely to take the view
that it is important for the child to have the opportunity to
develop a relationship with members of the extended family and to
make orders accordingly.
However, if a child is older and has never had a relationship
with grandparents or extended family members, the court is less
likely to make orders for the child to spend time with them.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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