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Insights

The Family Law Act recognises that children have a right to spend time with significant persons in their lives which include both of their parents, regardless of whether the parents are living together or not, step-parents, siblings, half-siblings, step-siblings, grandparents, aunts, uncles, nephews, nieces and any other person that may have had a significant involvement in the child’s life during the course of their parents’ marriage or de facto relationship, or personal relationship.

In determining applications that come before the Court where grandparents are seeking to spend time with their grandchildren, the Court must have regard to the same factors that it would use to determine a dispute if the parenting was between two parents of the child. Those are the factors set out under Section 60CC of the Family Law Act and are aimed at determining what is in the best interests of a child.

The overwhelming guideline is considering what is in the best interests of the child. In determining what is in the best interest of the child, the Court has to weigh up the benefit that the child would have in spending time with the person that is seeking to spend time with the child and its impact on the relationship that the child would have with his or her own parents, siblings etc.

When considering what is in the best interests of a child, the Court also has a duty to protect a child from physical or psychological harm and from being exposed to abuse, neglect or family violence. The definition of family violence was extended in 2012, to cover various behaviours, not just physical violence.

When an application is brought by grandparents to the Court to spend time with their grandchildren, it may be because there has been a breakdown of the relationship between the grandparents and their adult child, being the parent of the grandchildren or it is because their adult child’s former spouse has made it difficult for the children to spend time with the extended family of the other parent, including the great grandparents.

Whilst it may well be assumed that a child ought to have an ongoing relationship with their grandparents and other extended family members, the Court needs to have special regard to situations where the relationship between the child’s parents and grandparents or other extended family members, has become so irretrievably broken down that exposing the child to the acrimony between the adults would not be in the child’s best interests.

Whilst the Court does have regard to any wishes expressed by the child, they are weighed up against the child’s age and maturity and understanding of the situation. The Court also has to look at the capacity of each parent and any other adults to the dispute, such as grandparents to properly cater for the child’s emotional and intellectual wellbeing, protecting the child from physical and psychological abuse. Such physical and psychological abuse could be extended to the child witnessing arguments between the child’s parents and grandparents.

Often there are reasons why the relationship between the grandparents and their adult child or son/daughter-in-law has broken down to the extent that they are prevented from seeing their grandchildren. The Court will look at ways to mend the broken relationships by ordering therapeutic family counselling and obtaining evidence from experts that may be appointed to the case such as psychologists or psychiatrists.

There are times when the Court will also order an Independent Children’s Lawyer to represent the child/children in the dispute to ascertain their wishes and to put forward the proposals that would be promote the best interests of the child/children.

This is a complex area and any grandparent or other person seeking to spend time with a child that has become estranged from them, needs proper legal advice.