Spending time with grandchildren is something many of us look forward to. Occasionally however, a grandparent may have significant concerns for the welfare of a grandchild or be denied contact with the child. This may be due to the child’s parent suffering from health issues or mental illness, a relationship breakdown between the child’s parent and grandparent or the separation of the child’s parents which results in one parent refusing a grandparent contact with the child.

There is no automatic right for a grandparent to have contact with a grandchild, however the Family Law Act 1975 (Cth) recognises the right for a child to have a relationship with people who are meaningful in their life. These provisions specifically recognise grandparents who may apply to the Court for certain orders if family members cannot reach a resolution regarding children.

The overriding principles in determining such matters will always focus on the best interests of the child and legal advice from an experienced family Lawyer is always recommended.

Mediation and conciliation

A person who can demonstrate they have a concern for the care and well-being of a child may apply to the Court for parenting orders. If granted, the orders can make provision for a grandparent to live with, spend time with or communicate with a grandchild.

Court proceedings however are expensive and time consuming and can have a devastating impact on relationships that are already strained. They should be a last resort or used only in urgent situations. Accordingly, the first step is usually to talk to the child’s parents or carers to try to reach a workable arrangement.

Generally, parties must make genuine attempts to resolve disputes through alternative dispute resolution processes before proceeding to Court. Attending mediation involves a professionally-trained mediator or conciliator sitting with the parties to try to negotiate and resolve the dispute in a calm manner and to explore possible solutions.

A successful resolution during mediation can be formalised by way of a parenting plan or consent orders which are then filed with the Court.

Applying for Court orders

If mediation is not successful, you may apply to the Court for the orders you seek. The application must be accompanied with a certificate from a dispute resolution practitioner confirming that attempts were made to resolve the matter. The certificate is not required in urgent situations such as where family violence is involved and the child is at risk.

These proceedings are generally complex and require supporting evidence such as sworn affidavits, statements and reports. In some cases, an independent children’s lawyer will be appointed on behalf of the child or family consultant to interview and observe family members and prepare a family report.

We recommend the assistance of an experienced Lawyer to first advise on the strength of your case and then assist you with the process.

What the Court will consider

The best interests of the child will prevail in any application made to the Court and the following factors will be considered:

• The child’s safety and psychological well-being;
• If the child is of an appropriate age, the views expressed by the child;
• The effect that any orders will have on the child in light of any conflict between the child’s parents and grandparent;
• The present relationship between the grandparent and child and the time spent together to date;
• The practicality of the grandparent spending time with the child;
• Any financial assistance provided by the grandparent to the child.

Urgent circumstances

If you believe your grandchild is in imminent danger or at risk of abuse or neglect, you should contact your local police or Department of Family and Community Services.

If you have been denied access to your grandchildren and attempts to negotiate with the child’s parents or carers have been exhausted, our family law team will assist you with taking the next steps.