Grandparents hold an important position within Australian family law, and one that it is important to understand in a number of different circumstances. The Family Law Act 1975 has a specific provision enabling grandparents to make applications to the court, in their own right, for a parenting order relating to the care and living arrangements of their grandchildren. This law recognises the increasing number of applications for parenting orders made by grandparents and the significance of grandparents for the development and care of the children.
Access to the child
Upon separation, parents may choose to draft a parenting plan or seek orders from the Court in order to determine how they are going to proceed with the care of a child. These arrangements may cover the involvement of grandparents in the children's life and, in particular, the amount of time the children are to spend with their grandparents.
If the agreement between the two parents is being made on an amicable basis, grandparents will need to be involved in the negotiations, so that their role is clear from the early stages of the decision-making process. A written parenting plan or a parenting order made by consent can also include provisions for grandparents to spend time with the child.
In other situations, it may be that one or both parents attempt to block a grandparent from spending time with the child. It is possible for grandparents in these situations to use a dispute resolution process (for example, mediation) or, as a final resort, commence court action to seek contact with the child.
What if a grandparent is the primary caregiver of a child?
In some situations, a grandparent will find himself/herself in the role of the primary caregiver for the child. Again, the specific legal situation here will depend on what other measures have been put in place - an informal arrangement within the parents will not hold the same weight as a consent order registered through the courts or an order obtained from the court as a result of legal proceedings.
If there is no current order in place from the courts, grandparents can choose to apply for relevant orders to retain parental responsibility for the child and for the child to live with them. An order from the courts carries specific penalties for those who breach it.
However, even if orders are made for a grandparent to have parental responsibility for the child and be his/her primary carer, one or both of the parents can challenge it in court, but, to be successful in changing the care arrangements, they will need to prove that the concerns that warranted the initial orders are no longer relevant.
To learn more about how grandparents are affected by family law, specifically around children, make sure to discuss you situation with a family lawyer who has expertise in custody cases relating to minors.