Families come in all shapes and sizes, and in some cases, grandparents play a central role in raising grandchildren. Whether a grandparent is already caring for a grandchild, spends regular time with a grandchild or has been prevented from spending time with their grandchild, the Family Law Act 1975 (Act) can provide avenues to formalise and protect these important relationships.
Under the Act, grandparents are recognised as significant people in a child's life and hence, can apply for parenting orders. These orders can cover the person with whom a child lives, spends time, or a person or persons who share responsibility for making major long-term decisions affecting the child. This depends on the circumstances of each case and, particularly, the best interests of the child.
Informal care arrangements
It is not uncommon for grandparents to step in and take
on primary caregiving responsibilities when parents are unwilling
or unable to do so. In these situations, grandparents may wish to
formalise their role- particularly to ensure stability for the
child and perhaps to gain authority to make decisions about
schooling, medical care, or other important matters.
Spend time arrangements
In other cases, grandparents may not be seeking full-time
care but wish to maintain a meaningful relationship with their
grandchild. This might occur where the parents of the grandchild
have separated and a grandparent wishes to ensure they continue to
have regular time and communication with the grandchild, or where
their access to the grandchildren has been restricted by one or
both parents of the grandchild.
The law acknowledges that children benefit from maintaining connections with extended family members, provided it is safe and appropriate to do so.
Long-term decision-making ability (previously referred
to as "Parental Responsibility")
Long-term decision-making ability is as it sounds- the
authority to make major long-term decisions in a child's life.
While this is typically held by the parents, a grandparent may
apply to share or assume such decision-making ability depending on
the circumstances and how the child's interests are best
served.
Best interests of the child
When determining an arrangement that best meets the needs
of a child, the court considers a range of factors set out in
section 60CC of the Act, including:
- The benefit of the child having a meaningful relationship with both parents and other significant people in their life;
- The need to protect the child from physical or psychological harm;
- The nature of the child's relationship with their grandparents;
- The likely effect of any changes in the child's living arrangements or care;
- The capacity of the grandparent to meet the child's needs.
Process to follow
A properly documented arrangement can provide legal
recognition and protection for all parties involved. This may take
the form of either a parenting plan or parenting orders. The
document that best suits the parties and the grandchild's
interests will depend on the circumstances of the case.
Unless the matter is urgent or involves certain risk factors, parties must attempt to resolve parenting matters before commencing court proceedings. This includes participating in Family Dispute Resolution (FDR)- a form of mediation with the aim of assisting parties to reach agreement outside of Court.
If the parties reach agreement or even if there is already a parenting plan in place, the parties may still wish to formalise the arrangement, and they can do so by way of application to the Federal Circuit and Family Court of Australia for parenting orders by consent. The Court can often make the orders proposed without the need for a contested hearing.
We're here to help
At Mellor Olsson, our Family Law Team is experienced in
assisting grandparents navigate these sensitive and often complex
issues. Whether you're already caring for your grandchild,
seeking contact, or needing guidance on how to secure legal
recognition of your role, we're here to support you every step
of the way.
Please contact our Family Law Team if you would like tailored advice or assistance in exploring your options.
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.
