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

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.

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