It can be easy to forget that separation doesn't
just affect two parents and their children. When a relationship
ends, it can have an impact on extended family members as
In addition to feeling emotional about the separation, family
members, and grandparents in particular, are often called upon to
provide ongoing support with respect to care arrangements for
children. In some cases, particularly where parental conflict or
substance abuse is an issue, children may live with their
grandparents full time before or after separation.
The recently proposed changes to federal child care legislation
and rebates acknowledge the increasing role grandparents have in
providing child care, often as a result of separation of parents.
But what rights and responsibilities do grandparents have in
relation to grandchildren who live with them?
The Family Law Act 1975 (Cth) expressly provides that
grandparents may apply for a parenting order in relation to
children; in this regard, grandparents have the same rights and
entitlements as parents.
While it may seem like a drastic step to initiate court
proceedings, grandparents who have full time care of their
grandchildren (or are concerned they may not be able to spend
regular time with their grandchildren after a relationship ends),
can make an application to the Family Law Courts for a parenting
order to record the level of responsibility they have for
grandchildren in their care.
The Act provides that a parenting order can deal with issues
who a child lives with;
the time a child is to spend with another person;
who has parental responsibility for a child;
when or how a child is to communicate with another person or
other persons; and
financial support for a child.
A parenting order may be required as evidence for grandparents
that they have parental responsibility for a child, which means
they are entitled to make decisions about matters concerning their
care, welfare and development, or, that a child is to be in their
care on a particular day.
Not all grandparents will require the formality of an order.
However, where there is significant parental conflict or where
grandchildren are living with their grandparents (or one of them)
for any reason, an application to Court may be required to ensure
there is no impediment to making decisions for the children.
In that regard, the Act provides grandparents with the same
rights as parents.
Before any order is made, the Court will make a determination
about what arrangements are in the child's best interests. This
may include ordering all parties to participate in a family report.
A family report is a written document prepared by a psychologist or
social worker, who will interview all parties and the children (if
appropriate) and make recommendations to the Court about what
orders are in the child's best interests. The Court is not
bound by the recommendations of the family report writer, but the
report forms an important part of the evidence before the
The Court will encourage all parties to come to an agreement
about parenting matters to avoid the need for costly and often
protracted adversarial proceedings in the Court. It is possible to
secure a parenting order by consent, which means no one is required
to personally attend Court.
In addition, parents and grandparents who are involved with the
care and welfare of children can enter into a parenting plan. This
is a written agreement signed by all parties that addresses care
arrangements for children.
There are important differences between an order and a parenting
plan and it is important to obtain legal advice before signing any
document detailing arrangements for children to ensure it is
appropriate for your individual circumstances.
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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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