Australia: Children's matters: Grandparents and extended family rights

Last Updated: 4 June 2014

A relationship breakdown involving children does not only affect the children and their parents, but can also have a significant impact on extended family such as grandparents.

The law recognises the significant role extended family members can play in children's lives and attempts to facilitate and encourage their continued involvement and communication following the breakdown of a relationship, particularly those who are considered to have played a significant role in the children's care, welfare and development to date.

In the Best Interests of the Children

The Court's paramount consideration when making orders in relation to the children, is what is in the best interests of the children. In considering the children's best interests, the Court considers the nature of the children's relationship with that extended family member prior to separation and the likely effect of any significant change to that relationship.

Often grandparents take on a larger role in relation to the children's care, welfare and development other than just seeing the children on their birthdays, special occasions, Christmas, Easter and school holidays. For instance, children often reside with their grandparents for differing reasons.

In circumstances where the children are currently residing with their grandparents, or other extended family members, we encourage those extended family members to seek legal advice in relation obtaining Orders from the Family Court that the children live with them and that they have either joint or sole parental responsibility of the children. This is particularly important when there are concerns for the welfare of the children.

Parental responsibility allows the extended family member the right to make decisions in relation to the long term care, welfare and development of the children either solely or jointly with another party (often a parent), such as decisions in relation to the children's health, religion and education.

Whilst the involvement of extended family members, such as grandparents, is recognised under the Family Law Act 1975 for their role in the children's lives, it does not necessarily mean that the extended family members have a specific class of rights. The Court will consider the facts and circumstances of each individual case when considering the best interests for the children. In assessing their best interests the Court considers the capacity of the parents, grandparents or other extended family members to provide for the emotional and intellectual needs of the children.

Case Examples

His Honour in Penn & Haughton & Anor mirrored the views in Cole & Collier, a case where a maternal grandmother had brought an application merely to send cards to children and to obtain information about them and found that:

The child does not have any relationship with the maternal grandmother and the parents have formed the view that it would not be in [the child's] best interest to commence a relationship with the grandmother. In making such a decision, the parents have exercised their parental responsibility. This is a decision that they have come to together. A Court must be concerned when considering an application by a grandparent to become involved with a child... to ensure that parents exercising their parental responsibility, in appropriate and child focused ways, do not have that responsibility undermined by unnecessary interference from the Courts.

Whilst the Family Court remains cautious about interfering with a parent's rights in relation to their children, it does not necessarily mean there is a presumption in favour of a parent over an extended family member.

The matter of Church & Overton considered the appropriateness of making orders for children to spend time with their grandfather against the wishes of their mothers and held that:

The Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child's best interests. However, any determination of the best interests of the child or children should be informed by the family dynamics between the children's parents and grandparents. In that regard, the views of the parents are significant, but not necessarily determinative.

In determining the children's best interests, His Honour went on to say the children's right to know and spend time with a grandparent or extended family member applies:

"except when it is contrary to the child's best interests". This means that parents ought to be left to parent their children according to those objects, unless it is established that it is not otherwise in the best interests of a child.
The law is that parents are entitled to parent children. If there is an assertion that parenting duties ought to be usurped, it is for the person asserting that fact to establish that parents are not carrying out those duties in the best interests of the child.

Concerns for Children's Welfare

In considering the children's 'best interest' grandparents and extended family members often raise concerns for the care, welfare and development of the children or have reasons to believe that the children are at risk of abuse or family violence. In these circumstances, they should immediately contact the Police and/or Department of Community Services.

Reaching Agreement and Family Court Orders

Extended family members can apply for Orders in the Family Court for matters such as parental responsibility and who the children live, spend time and communicate with. If there are no concerns for the children's welfare, you must first attempt mediation with the parents in an effort to reach an agreement before you are able to file an Application in the Family Court.

If you are successful in reaching an agreement, Mediators often encourage parties to enter into a Parenting Plan. Unfortunately however, only parents can enter into the parenting plan, so any agreement would require both parents to agree. Further, if a party decides that they no longer agree with the Parenting Plan, it cannot be enforced. Accordingly, we suggest that any agreement reached at mediation is documented by way of Consent Orders in the Family Court.

In the event that you are unable to reach an agreement, you will be issued with a section 60I certificate which will allow you to commence an Application in the Family Court for children's Orders.

However, if you have concerns that the children may be subject to abuse or family violence, you can make an urgent application to the Family Court without first attending mediation. You will also need to file a Notice of Child Abuse or Family Violence together with your Application setting out your concerns and/or evidence of the same at the time of filing your Application.

Support for Extended Family Members

Many support options are available for extended family members such as grandparents to assist in keeping the children safe, and/or to facilitate and encourage the continued relationship with the children. The Department of Human Services can provide assistance to extended family members or grandparents who are recognised 'primary carers' for the children, subject to certain criteria. Family Court Orders can assist in establishing the 'primary carer' status. These benefits include carer's payment, child care payment, and family Tax benefits and/or child support.

Legislation and benefits available to extended family members and grandparents are designed to encourage and facilitate the involvement of the significant role that these people play in the children's lives, while taking into account the children's best interests and keeping them safe.

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.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.