You may be a grandparent who is caring for or raising your grandchildren, you may be concerned about your grandchild’s safety or well being, or you may have been stopped from seeing your grandchildren and would like to know what you can do about it. You do have legal options.
The Family Law Act 1975 applies across Australia to separation and divorce, division of property and with whom children live and spend time. Grandparents can use the Family Law Act to apply to the court for orders that their grandchildren live or spend time with them. You can do this whether the parents of the children are together or separated.
The Family Law Act acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Act as being able to apply for court orders regarding their grandchildren. While the term ‘grandparents’ is used, this information also applies to other relative carers, such as aunts and uncles or other family members who are caring for or raising children.
It is also important to be aware that while a relationship between grandparents and grandchildren is acknowledged to be important, this does not mean that grandparents (or indeed parents) have an automatic right to have contact with children. The Family Law Act makes it clear that what is in the best interest of the child is always the main consideration when it comes to decisions about parenting.
When Parents Separate
Most separating parents can agree about the various aspects of their children’s lives – who the children will live with, spend time with and communicate with, where they will go to school, who they spend holidays with, decisions regarding medical treatment and so on. This can be done informally, without any documents and without going to court. These decisions can also be put into a written agreement called a Parenting Plan that sets out the arrangements for the children. Parents can make the agreed arrangements for the children more formal by writing up what are called Consent Orders and registering them with the court.
You may feel confident that you will continue to have the same level of contact with your grandchildren if their parents separate. If you are not confident that this will happen you can talk with the children’s parents about including you in a Parenting Plan or in Consent Orders if they are going to have these documents drawn up. However the best interests of the children must always be taken into account and the practicalities of implementing the arrangements need to be considered.
If the parents can’t agree on the arrangements for the children between themselves, or with the help of a family dispute resolution service, they can apply to the court for Parenting Orders. If you and the parents cannot agree on what contact you will have with the children you can also apply to the court for Parenting Orders about your grandchildren.
Parenting Orders can deal with:
- where the child lives
- who they spend time with
- who has parental responsibility
- what communication the child is to have with other people, including by telephone or email
- any other aspect of the child’s care, welfare and development.
Courts decide what is in the best interests of the child by evaluating:
- the benefit to the child of having a meaningful relationship with both parents and grandparents
- the need to protect the child from harm
- the views of the child (the importance given to the child’s views will depend on their age, maturity and level of understanding)
- the child’s relationship with parents and others, including grandparents and other relatives
- each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent
- the effect of any change to the current situation on the child
- the practical difficulties and expense involved in ‘spending time with’ and ‘communicating with’ a parent or grandparent
- the capacity of each parent and others to provide for the child’s needs (as a grandparent this may include your health, age and financial circumstances)
- the maturity, sex, lifestyle and background (including culture and traditions) of the child and parents
- each parent’s attitude to the child and to parenting
- any family violence involving the child or a member of the child’s family
- the desire to make an order that is least likely to lead to further court proceedings
- any other circumstance the court thinks relevant.
Although you have a right to apply to the court for Parenting Orders this does not mean that the court will make an order in your favor. You should get legal advice before you do this.
Stopped from Seeing Your Grandchildren
Sometimes grandparents are stopped from having a relationship with their grandchildren. This can happen where the relationship with your own child has broken down (but the parents’ relationship remains intact), or where the parents have separated and one parent refuses to let you have anything to do with your grandchildren. Grandparents do not have an automatic right to have a relationship with a grandchild. However, anyone who has an ongoing relationship with the child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for Parenting Orders. A Parenting Order can be an order that you can spend time with or communicate with the child. It will be up to the Court to decide what will happen, based on what is in the child’s best interests.
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 first step is to seek legal advice. The information on this website is general information only. Please contact us to gain advice specific to your circumstances.
Going to court should always be the last option as it can be stressful and expensive. Before you do anything you should talk to the parents and try come to an agreement about how and when your grandchildren see or have contact with you. Not only is it in everyone’s interest to resolve disputes without taking legal action, but the Family Law Act requires people to try family dispute resolution first. Family dispute resolution is where an independent person who is trained to help families discuss their differences tries to help you explore possible solutions with each other. This is also called mediation. If the mediation is successful the agreement about the time you are to spend with your grandchild can be written up in a Parenting Plan or Consent Orders, which can then be lodged with the court.
If you are not able to resolve the dispute about contact with your grandchild through mediation you will have to apply to court for an order that you can spend time with or communicate with your grandchild. You can only lodge an application with the court if you have a certificate from an accredited family dispute resolution practitioner to show that dispute resolution was attempted.
You should get legal advice before taking legal action, including advice about how strong your case is; what forms and documents you will need to lodge with the court to support your case; what orders you should ask for; which Court you should start the case in and the costs of taking legal action.
In some cases the Court can order that an independent children’s lawyer be appointed to represent the child’s interests. That lawyer’s role is to form an independent view of what is in the child’s best interests and make the Court aware of those interests. The Court can also order a Family Consultant (normally a counsellor, social worker or psychologist) to interview and observe the parties and the child and prepare a Family Report for the Court.
It can take more than 12 months from the date you apply to the Court for final orders to be made, depending on the complexity of the case. However temporary orders can be made in the meantime.
Caring for Your Grandchildren
If you are caring for your grandchildren with the informal agreement of the family you may want to think about formalising the arrangement. 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. You should get legal advice about this.
If you have been caring for your grandchildren informally and you don’t think it would be in the best interests of the children to resume living with their parents, you will need to think about starting court action to get orders that the children are to stay with you. Before you can apply to the court you will need to seek legal advice and attend dispute resolution with the parents of the child if possible. If there needs to be a hearing the Court will decide what would be in the best interests of the child.
If there are already court orders in place that state that the children are to live with you and the parents wish to have the children back with them, they will need to go back to Court to apply to have the orders varied. The parents will need to show the Court that their circumstances have changed since the orders were originally made, and that it is in the children’s best interests for them to be returned to them.
Concern About Your Grandchild’s Safety and Well-being
If you have concerns for your grandchild’s welfare or safety in their current living situation you can:
- Talk to the Police
- Consider taking legal action under the Family Law Act (You should get legal advice before you do this).
- Report your concerns to the Department of Family and Community Services (FACS)
If you report your concerns to FACS you will be taking action under care and protection law, not family law. The Children and Young Persons (Care and Protection) Act NSW is the law that applies in New South Wales when the Department of Family and Community Services (FACS) thinks it is necessary to intervene to protect a child or young person from neglect or abuse. Care and protection law is completely separate from family law. FACS can support families to look after their children, or can remove children from their parents if it thinks it is necessary for their safety, welfare and well-being or if they are at risk of harm. Grandparents can sometimes get involved when FACS makes decisions about the children and in some cases may be able to have the children placed in their care. You can apply to be joined as a party to Children’s court proceedings started by FACS or the court can join you as a party.
If FACS removes a child from their family they have to apply to the Children’s Court for an order for an alternative placement for the child, unless the parents agree to a temporary care arrangement. This is called ‘making a care application’ to the Court. FACS will first ask the Children’s Court to make short term orders. This can be either a 14-day order called an Emergency Care and Protection Order (ECPO), or an Interim Order that will usually remain in place until Final Orders are made by the Court. This may take up to 12 months.
The Children’s Court will also decide who should have ‘parental responsibility’ for the child. Parental responsibility means that any decisions about the child’s wellbeing which normally would have been made by the parents are now made by another person. That person has the legal authority to make decisions about the child. The Court may allocate parental responsibility to the Minister for Family and Community Services or to another suitable person, including a grandparent or other relative.
If short term orders are made, you can ask that the child be placed in your care. This is a separate issue from parental responsibility. For example, the Court may give parental responsibility for the child to the Minister for Family and Community Services, and then FACS may decide that the child should be placed with you or another appropriate carer. If the Court gives you parental responsibility you can decide that the child will live with you.
If FACS has parental responsibility for the child and you wish to have the child placed with you, FACS will need to assess you and your household to make sure that you will provide a safe and satisfactory placement for the child. This is the case even if you have been the person who has cared for your grandchild informally in the past. If you wish to have the child placed with you then you should tell FACS as soon as possible.
Unfortunately it is common for agreements between parties to be breached. Common concerns include: ‘the other parent has failed to return my child’, ‘I am worried that the other parent will remove my child from Australia’, ‘the other parent has relocated and I have no idea where they are’, ‘the other parent refuses to make the child available when I am meant to spend time with them’ and ‘I am worried about the safety of my child while in the care of the other parent’. At times parents may have already contacted the local police who may not be able to assist without a court order. If you are faced with any of the mentioned situations, contact a family law solicitor promptly as action needs to be taken and documents need to be prepared quickly and correctly.
In circumstances where a child has been removed from a parent or a parent has refused to return a child you will need a lawyer to file and obtain an urgent recovery order. Essentially the court will be asked to make an order which will enable the local police to physically take custody of the child and return the child. If done promptly and efficiently, the child can be reunited with their parent within a few days.
If the other parent is trying to remove the child from the country your family lawyer can have the child placed on the airport watch list. Once a child is removed from Australia, a parents ability to recover the child is severely restricted. There are countries where there is nothing a parent can do. If you contact a family lawyer early enough, having your child placed on the airport watch list ensures that your child is unable to leave any airport in Australia without being removed or a further court order. It is possible to make these arrangements outside of business hours and the child will be placed on the list within 24 hours.
In the situation where the other parent relocates interstate or simply disappears with the child and you have tried contacting the other parent, the school, police, family and friends to no avail, it may be necessary to seek a location order. This is an order authorising government agencies to release information to enable you to locate the parent and the child. Normally the child would have enrolled in a new school or had their Centrelink details updated by the other parent. This information is then used to take further legal action such as a recovery order.
If the other parent refuses to make the child available to spend time with you, you may be able to file an urgent contravention application. It is used for an application alleging a breach of a parenting order. If you don’t actually want the other party punished (e.g. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than an Application – Contravention. You should seek legal advice before filing an Application – Contravention.