What are Grandparents rights in Queensland?
Grandparents are an integral part of any family dynamic, and in a society where familial breakdowns are common it's important to understand your legal rights. The relationship between a child and a grandparent is irreplaceable, and while not explicitly mentioned in Australian legislation, there are a multitude of things to recognise when striving to maintain this relationship.
This article will explore grandparents rights in Queensland in depth and outline any conflict that may arise.
If you are in a legal situation and unsure of your rights it is always best to seek legal advice.
The team at Justice Family Lawyers are available to chat and can help you discuss all your options.
Under The Family Law Act 1975 (Cth) the legislation does not give the elderly an immediate right to see their grandkids, however gaining grandparents rights in Queensland is entirely possible.
In 2006 amendments were made to the Family Law Act 1975 that recognised the importance of a grandparent's role in a child's life. Under section 60B(2)(b) of the Act it provides that;
".Children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)".
These principles are applicable to all situations unless it would be contrary to the best interest of the child. Depending on each individual situation a family court judge may decide to authorise relations between the child and their grandparent or to refuse ties between the two. This article will guide you through grandparents rights in Queensland and how to navigate the complexities of grandparents rights in Australia.
Do grandparents in Queensland have rights to see their grandchildren?
Grandparents have the right to see their grandchildren in Queensland and to accommodate their grandchildren. They also have the right to exchange correspondence with them and to participate in their education.
They have these rights as long as they do not take the place of the parent's rights. These rights will remain valid through the event of parental divorce, in the case of a child born outside of a marriage and if the grandchild is adopted.
In some situations it may be authorised that a grandparent will gain the custody of their grandchild/children in the event of a parental divorce, and if the child and/or children are unable to stay at the home of both parents. In this case the grandparents must respect parental visitation rights. A judge may only withdraw these rights for severe reasons in Queensland.
In the instance of a conflicting scenario grandparents can be stopped from having a relationship with their grandchildren.
Unfortunately, grandparents do not have an automatic right to have a relationship with their grandchild, however anyone who has an ongoing relationship with a child or any other person who can show that they have an integral role in the care, welfare and development of a child (including grandparents) can apply to the court for a parenting order.
A parenting order is one that allows for time and communication with a child, and it will be up to the court to decide what the order will stipulate based on what is in the child's best interest.
If you are in a situation where you are being refused access to your grandchild and/or grandchildren your first point of call should be to seek legal advice. Going to court should be a last option. Before you move forward it is in your best interest to try to come to an agreement with the parents about how and when you can have contact with your grandchild and/or grandchildren. It is in the majority's best interest to resolve disputes without going to court and the Family Law Act 1975 actually requires people to try family dispute resolution before anything else.
This is integral in maintaining your rights as a grandparent as it allows for a professionally trained individual to assess the situation in order to reach the best outcome. This can sometimes be known as mediation.
If a grandparent wishes to apply for a court order mediation should be tried first. If mediation is success the agreement should then be written up in a parenting plan or consent order which is able to also be lodged with the court.
Going to court should always be the last option as it can be stressful and expensive. Before you do anything you should talk to the parents and try come to an agreement about how and when your grandchildren see or have contact with you.
Not only is it in everyone's interest to resolve disputes without taking legal action, but the Family Law Act requires people to try family dispute resolution first. Family dispute resolution is where an independent person who is trained to help families discuss their differences tries to help you explore possible solutions with each other. This is also called mediation or conciliation.
If the mediation is successful the agreement about the time you are to spend with your grandchild can be written up in a Parenting Plan or consent orders, which can then be lodged with the court.
Grandparents can also be granted a court order which will allow them to see and spend time with their grandchildren. These orders are legally binding orders and will direct parties to perform an action to benefit the person who filed for a court order.
What are grandparents rights in Queensland when it gets to court?
If you have decided to apply to the court for an order to spend time or communicate with your grandchild, you may only do so with a certificate from an accredited family dispute resolution practitioner, to show that mediation was attempted. If you do not have this there are monetary penalties, so it's important to seek legal advice if you are unsure.
If you are in a situation where there has been or there is an imminent risk of abuse or family violence the court will waive the certificate to be un-necessary. A certificate is also not necessary if the matter is urgent or if any party is unable to participate due to serious illness or disability.
Justice Family Lawyers can help you with advice about how strong your case is and what forms and documents you will need to support your case. To open a case, you can apply once talking to a legal professional, at either the Federal Circuit and Family Court Of Australia or at the Local Court.
If a case goes to court there will then be a hearing and the court will decide what outcome is best suited for the best interests of the child. The court will take the following into consideration when assessing what the best interests of the child are:
- The benefit of a child having a meaningful relationship with both parents and/or grandparents
- The need to protect the child from harm (this outweighs the above in necessity)
- The views of the child (this will depend on their age and maturity)
- The effect of any change to the current situation
- The practical difficulties and expenses involved in spending time and communicating with a grandparent
- The capacity of each grandparent, it may include health, age and financial circumstances
- The maturity, sex, lifestyle and background of the child and of the grandparents
- If the child is Aboriginal or Torres Strait Islander, the child's right to enjoy Aboriginal or Torres Strait Islander culture
- Any family violence involving the child or a member of the child's family
- Any family violence orders
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.