What Are The Rights Of Grandparents?

What Are The Rights Of Grandparents?

By Leach Legal | 28 August 2017

Sometimes grandparents are stopped from having, or continuing, a relationship with their grandchildren because of a breakdown in their relationship with their own child or the child’s other parent, unfortunately if this occurs the grandparents do not have an automatic right to have a relationship with a grandchild.

However, if your child and/or their partner is refusing to let you see or speak to your grandchild you can take steps to try to change the situation.

The Family Law Act (‘the Act”) allows the Court to make Orders for the time a child is to spend with other people other than that child’s parents. Grandparents are specifically referred to in the Act as people who may apply to the Family Court for Orders to spend time with their grandchildren, and even for their grandchildren to live with them.

Grandparents can apply under the Act for Orders for time with their grandchildren whether the parents of the children are together or separated.  Often grandparents apply to spend time with their grandchildren when their child has died or for one reason or another their child is no longer involved actively with their own children due to illness or incarceration.

The principles which the Court applies in deciding whether to Order that grandchildren spend time with a grandparent, are the same principles that apply to any other person seeking to spend time with a child.  The Act makes it clear that the ‘best interests of the child’ is the paramount consideration when it comes to decisions about parenting including who the children should spend time with.

The focus of the Act is on the rights of children to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.

The Court will consider the time that the grandparents have spent with the children, if they have been actively involved in their care in the past, their current relationship with the children and the practicality of time being spent.

However, if there is conflict and a lack of agreement between the parents and the grandparents, a Court will have to consider the effect of any Orders on the parent’s ability to act as primary carers, which may in turn affect the children.

In my experience, when a grandparent is keen to spend time with children, but that is not appreciated or agreed to by the child’s parents, the Court is likely to Order only very limited time with the grandparents or no time at all.

In my view, grandparents are more likely to get agreement to spend time with their grandchildren if they propose mediation or family therapy with the children’s parents rather than taking parents to Court, as often this will be costly for both sides and is likely to only further fracture broken relationships.

In contrast, sometimes grandparents become their grandchildren’s primary carers not because they want to, but because for one reason or another their own children are unable to care for their grandchildren or the children have been found to be unsafe in their care by the Department for Child Protection and Family Support.

If you are caring for your grandchildren with the informal agreement you may want to think about formalising the arrangement so that you have the primary right to make decisions about the children in the case of emergency or when the parents are incapable of making the decision. You can do this by putting it in writing with both parents (getting Consent Orders) and registering that with the Court. This will clarify the arrangement and help if there are any disputes down the track about the care of the children.

A useful guide as to the resources available to assist grandparents raising their grandchildren in Western Australia can be found at: https://www.dlgc.wa.gov.au/Publications/Documents/GrandfamiliesGuide.pdf

And for more information, contact Leach Legal today on 9486 9733!