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13 May 2011 Rights of grandparents and other extended family members to see the children after families separate

By Annette Wilson, Special Counsel


In Brief - Importance of a pre-existing relationship and the age of the child   

The decision of a court about grandparents and extended family members spending regular time with the children after separation or divorce is likely to be influenced by the age of the children and by whether or not a relationship already exists with the children.


Importance of the rights of children

The law is formulated around the rights of children. Changes to the Family Law Act in 2006 made it clear that children have a right to spend time and communicate on a regular basis with any person who is significant to their care, welfare and development, such as grandparents and other relatives. This is an important right, because part of the child’s identity stems from knowing their grandparents and extended family.

Both grandparents and parents should try not to denigrate other members of the children’s family in front of the children and should be as encouraging as possible for children to spend time with their grandparents and extended family members on both sides of the family.

Reaching an agreement with the parents

The best way for grandparents or other family members to ensure that they continue to have a relationship with a child is for the grandparent or other family member to speak directly to both parents to discuss arrangements. This is not always easy when there is a difficult marriage breakdown, but both grandparents and parents need to keep in mind that it is the interests of the children which are most important.

Grandparents and extended family members have access to Family Relationship Centres and alternative dispute resolution centres to assist them in negotiating with parents to allow them to have regular, uninterrupted visits with the children.

Inability to reach an agreement with the parents

If grandparents or extended family members cannot come to an arrangement with the parents, a Section 60I Certificate can be issued and they are then able to make an application to either the Federal Magistrates Court or Family Court to have orders made for them to see the children.

In most circumstances, the amount of time that grandparents and extended family members will spend with the children is not the same as it is for parents. However, a court will be mindful of the importance of grandparents and extended family members to children in terms of their identity and their later relationships with their family, including grandparents, aunts, uncles, cousins and other persons who have been important in their lives.

Factors likely to influence the court

The likelihood of a court granting grandparents or extended family members the ability to spend time with children after the family has separated depends partly on the children’s age and partly on the presence or absence of a pre-existing relationship with the children.

In the case of an infant, the court is likely to take the view that it is important for the child to have the opportunity to develop a relationship with members of the extended family and to make orders accordingly.

However, if a child is older and has never had a relationship with grandparents or extended family members, the court is less likely to make orders for the child to spend time with them.

For further information please contact:

Annette Wilson, Partner  |  Phone: +61 2 9233 5544  |  Email: amw@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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