Grandparents play an essential role in the lives of their grandchildren, often providing love, support and guidance. However, the complex nature of grandparents’ rights in Queensland can leave many feeling uncertain and overwhelmed. As a result of parental separation or other familial changes, grandparents may find themselves struggling to maintain a connection with their grandchildren, even when it’s in the best interest of the child. In Queensland, Commonwealth Family Law applies and this is the legislation which governs this aspect of family law.
In this article, we delve into the intricacies of grandparents’ rights in Queensland, exploring how the Family Law Act (1975) recognises the importance of maintaining relationships between children and their close relatives, including grandparents. We will also discuss how a grandparent can apply for a Parenting Order.
Whether you’re a grandparent seeking advice on your rights or simply interested in understanding this complex area of law, this article will provide valuable insight into grandparents’ rights in Queensland.
With a compassionate and pragmatic approach, Daykin Family Law can help you navigate the often daunting legal landscape and ensure the best course of action is taken for your grandchildren. Contact us today to find out how we can help you.
Based on the legislative framework, grandparents have rights concerning their grandchildren, but these rights are always subject to the best interests of the child.
According to Section 60B2(b) of the Family Law Act, children have the right to spend time with and communicate regularly with their parents and other people significant to their care, welfare, and development. This includes grandparents and other relatives. However, it is crucial to note that these rights are not absolute and are contingent upon the child’s best interests. Factors to consider in determining the child’s best interests include ensuring their safety and, in effect, the fulfilment of parental duties and responsibilities.
Parenting Orders do not automatically include grandparents. Sometimes, when parents separate and make arrangements for their children, grandparents can be left out of the equation. When this occurs, the grandparent-grandchild bond can be impacted. Grandparents can apply separately to the Court for orders to spend time or communicate with their grandchildren, for example, if no agreement can be reached with the parents prior. In a great number of cases, the legislation effectively dictates that family dispute resolution should be explored first between the grandparents and the parents before commencing such a Court application, as long as it is safe to do so for example.
If a grandparent is prevented from spending time, or communicating in any way, with a grandchild or grandchildren, they may seek a Parenting Order that outlines the time they are able to spend with their grandchild or grandchildren, the communications they are to have with them or other orders. This is because the Court generally considers it the child’s right to have a relationship with close relatives such as grandparents. Grandparents are specifically named in the Family Law Act 1975 as having the right to apply for parenting orders.
If an agreement can be reached, informal arrangements and parenting plans are an option and an alternative to Court-ordered parenting orders. Or, if an agreement is to be binding and enforceable, parties (including grandparents) can formalise such agreements by applying for a consent order through the Federal Circuit and Family Court of Australia.
In some cases, grandparents can apply for parental responsibility to be able to make certain major long-term decisions in respect of their grandchildren. This is an example of one of the orders that grandparents can apply for, provided of course it is in the children’s best interests.
If no agreement can be reached between parties, then dispute resolution/family mediation usually must be undertaken first before applying to the Court for orders. If the issue is still unresolved, or family dispute resolution is inappropriate for example, then grandparents can apply for a Parenting Order to enable their grandchildren to spend time and/or communicate with them, or for the children to live with the grandparent(s) and for them to have parental responsibility for them. These are just some examples of what options there may be available.
There are a number of documents that grandparents need to be filed with the Court when applying for a Parenting Order, which Daykin Family Law can assist with. These documents include the following:
b. Affidavit: This document contains statements and evidence in support of the application
c. Section 60I certificate: This certificate is obtained from a Family Dispute Resolution practitioner, or an Affidavit non-filing of family dispute resolution certificate needs to be filed if exempt from family dispute resolution
d. Notice of child abuse, family violence, or risk: This form is mandatory and must be filed to report any such issues in the case
e. Any family violence orders: Copies of any relevant orders, if applicable.
f. Genuine steps certificate: This document shows applicant(s) have made a genuine effort to resolve the dispute before applying for a parenting order if appropriate.
The assistance and advice of an experienced family law practitioner can be invaluable from the outset when grandparents are considering how best to navigate family dynamics to ensure that the relationship with their grandchildren is protected and best promoted. In some serious cases, grandparents have cause to intervene to protect their grandchildren from a risk of harm, and Daykin Family Law has experience in making applications to the Court for grandparents to assume care and parental responsibility for their grandchildren.
With years of experience in family law, our team of compassionate and knowledgeable lawyers can provide guidance on navigating the complex world of grandparents’ rights in Queensland. Whether you need assistance with applying for a Parenting Order, resolving a dispute through mediation, or understanding your legal rights, Daykin Family Law is dedicated to helping you achieve the best outcome for your grandchildren.
Contact us today to book an appointment and take the first step towards protecting your relationship with your grandchildren.
In modern society, families are increasingly reliant on the significant care and support that grandparents provide to their grandchildren to allow parents to work and provide for their own family. While it’s hoped that a separation will not affect grandparent’s relationships with their grandchildren, this is quite often not the case.
Have you been stopped from or limited in the time you can spend with your grandchildren? Including after a separation or divorce? As a grandparent, you have options to assist you to preserve your grandchildren’s relationship with you.
The Family Law Act (Cth) 1975 gives the Court power to make parenting orders for children that relate to other people, not just parents. In fact, grandparents are specifically listed in the legislation along with parents as people who may apply to the Court for parenting orders.
As with all parenting matters before the Court, the Judge must regard the child’s best interests as the paramount consideration when making decisions. This includes a number of factors, including but not limited to the following:
In circumstances where neither parent may be suitable to care for the child, or where as a grandparent you have been the child’s primary carer, the Court enables you to make an application for them to live with you or to spend substantial and significant time with you. It is important that if you feel these circumstances apply to you that you seek legal advice prior to making an application with the Court.
Of course, Court should be the last resort. It is one of the many reasons that the law requires parties to attend mediation proper to commencing court proceedings, unless there is urgency or has been family violence. While mediation does not guarantee that you will reach agreement as to what time you can spend with your grandchildren, it can be step in the right direction in a lot of cases.
For complex family relationships, there are also family counsellors and other services available that may be able to assist you to discuss with your family the time your grandchildren can spend with you without adding further conflict.
For advice tailored to your specific circumstances, contact us today to discuss your options.
First published 19 October 2017