There may be situations where grandparents are prevented from seeing their grandchild as the relationship between them and their own child has deteriorated, or the parents of the child have separated and one of the parties refuses to let the grandparents see the child. This can also happen if the grandparents have been the primary carer of the child and the child’s parents return to take the child back into their care.
The Family Law Act 1975 (Cth) (‘the Act’), is the law that applies to all states in Australia regarding separation, divorce, division of property and children.
The Act acknowledges the importance of the child having a relationship with their grandparent, however, does not mean grandparents have an automatic right to have contact with the child. However, grandparent may apply to the Family Court for orders allowing the grandparent to contact and/or spend time with the child.
Best interest of the child
A child’s best interests are a paramount consideration when the Family Court makes a decision regarding parenting. Interest includes matters related to the wellbeing of the child such as the care, welfare and development of the child. This includes:
- Where the child lives;
- Who they spend time with;
- Who has parental responsibility; and
- What communication the child is to have with other people.
Therefore, in determining the best interest of the child, the Court will consider the nature of the child’s relationship with their grandparents.
Arrangements in separation
If parents who separate are able to communicate with each other and agree about where or who the child lives with, the amount of time spent with each parent or other relatives, and other aspects of the child’s care, welfare and development, the arrangement can be agreed upon informally, without any written document or without the intervention of a Court.
If the parents want to have the arrangements for the child in writing, they can agree to a Parenting Plan. This does not require the intervention of the Court, but rather an agreement between the parents. Another option available to parents if they wish to have their agreed arrangement formalised is to register their agreement with the Court, referred to as Consent Orders.
Grandparents may feel that after their grandchildren’s parents separate, they will not be able to see their grandchild. Discussions with the parents about time with their grandchild may prove fruitful, however if parents do not agree on arrangements for the child to have contact with the grandparents, the grandparents may apply to the Family Court for Parenting Orders in relation to the grandchild.
Care and Protection
If a person believes a child is subject to, or is experiencing neglect or abuse, they may seek assistance with the Department of Communities and Justice (DCJ), formerly known as the Department of Family and Community Services (FACS).
DCJ is a NSW government child protection agency responsible for protecting children and young people from risk of harm. The agency works with children, families, adults and communities improve the lives of all involved, assist people to realise their potential and take charge of their lives.
DCJ has the power to intervene necessary to protect child from harm, drawing on power from the Children and Young Persons (Care and Protection) Act 1998 (NSW). This is a state law which is heard in the Children’s Court and is different to the Family Court, which is a federal law.
It is advisable that if you suspect or have concerns for the safety and welfare of the child, you should seek assistance from:
- The police;
- Report the concerns to Department of Communities and Justice (DCJ) on 13 2111 (NSW);
- Senior Right Service on 1800 424 079;
- Council on Ageing NSW 1800 449 102 or 02 9286 3860;
- Legal Aid NSW Child Support Service 1800 449 102 or 02 9286 3860; or
- A Family Lawyer