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

Last Updated: 4 June 2014
Article by Kristy Vukovic (previously with Kott Gunning)

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.

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Kristy Vukovic (previously with Kott Gunning)
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