GRANDPARENTS AND FAMILY LAW


The saying goes “it takes a village to raise a child.” It is therefore unsurprising that the breakdown of a relationship does not just impact the parties involved, it can have a far-reaching effect, including on children’s relationships with their grandparents and extended family.

The Family Law Act 1975 (“the Act”) acknowledges the importance of children having a relationship with their grandparents and extended family. Under the Act grandparents, and extended family members, can make an Application for an order for their grandchild to live with them, spend time with them, or to communicate with them.

Prior to commencing proceedings, Grandparents, as with all other litigants, must first attempt to engage in mediation in an attempt to resolve the dispute. If the matter can be resolved at mediation a Parenting Plan or Consent Orders can be prepared and signed by all parties. If the matter remains unresolved grandparents may then make an Application to the Court.

When determining applications that come before the Court where grandparents are seeking to spend time with their grandchildren, similarly to when determining dispute between parents, the Court must have regard to the Best Interests of the child.

When an application is brought by grandparents to the Court to spend time with their grandchildren, it may be because there has been a breakdown of the relationship between the grandparents and their adult child, being the parent of the grandchildren or it is because their adult child’s former spouse has made it difficult for the children to spend time with the extended family of the other parent, including the great grandparents.

Whilst it may well be assumed that a child ought to have an ongoing relationship with their grandparents and other extended family members, the Court needs to have special regard to situations where the relationship between the child’s parents and grandparents or other extended family members, has become so irretrievably broken down that exposing the child to the acrimony between the adults would not be in the child’s best interests. For example, in the case of Coleman & Hindle and Ors [2010] due to the conflict between the parents and grandparents (and the impact of such ongoing conflict on the children) the Court ordered that the children were not to spend time with or communicate with their Grandparents.

Often there are reasons why the relationship between the grandparents and their adult child or son/daughter-in-law has broken down to the extent that they are prevented from seeing their grandchildren. The Court will look at ways to mend the broken relationships by ordering therapeutic family counselling and obtaining evidence from experts that may be appointed to the case such as psychologists or psychiatrists.

This is a complex area and any grandparent or other person seeking to spend time with a child that has become estranged from them, needs proper legal advice. If you are concerned that your relationship with your grandchild has been affected by separation McLachlan Thorpe’s family law specialists are able to assist in providing advice to help you continue to have a relationship with your grandchild. Please contact:

Vicki Kelly, Accredited Family Law Specialist, vkelly@mtpartners.com.au

Renee Smith, Accredited Family Law Specialist, rsmith@mtpartners.com.au

Emma Shuttleworth, eshuttleworth@mtpartners.com.au

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