Family law insights: The role and entitlements of grandparents

It can be easy to forget that separation doesn’t just affect two parents and their children. When a relationship ends, it can have an impact on extended family members as well.

In addition to feeling emotional about the separation, family members, and grandparents in particular, are often called upon to provide ongoing support with respect to care arrangements for children. In some cases, particularly where parental conflict or substance abuse is an issue, children may live with their grandparents full time before or after separation.

The recently proposed changes to federal child care legislation and rebates acknowledge the increasing role grandparents have in providing child care, often as a result of separation of parents. But what rights and responsibilities do grandparents have in relation to grandchildren who live with them?

The Family Law Act 1975 (Cth) expressly provides that grandparents may apply for a parenting order in relation to children; in this regard, grandparents have the same rights and entitlements as parents.

While it may seem like a drastic step to initiate court proceedings, grandparents who have full time care of their grandchildren (or are concerned they may not be able to spend regular time with their grandchildren after a relationship ends), can make an application to the Family Law Courts for a parenting order to record the level of responsibility they have for grandchildren in their care.

The Act provides that a parenting order can deal with issues such as:

• who a child lives with;
• the time a child is to spend with another person;
• who has parental responsibility for a child;
• when or how a child is to communicate with another person or other persons; and
• financial support for a child.

A parenting order may be required as evidence for grandparents that they have parental responsibility for a child, which means they are entitled to make decisions about matters concerning their care, welfare and development, or, that a child is to be in their care on a particular day.

Not all grandparents will require the formality of an order. However, where there is significant parental conflict or where grandchildren are living with their grandparents (or one of them) for any reason, an application to Court may be required to ensure there is no impediment to making decisions for the children.

In that regard, the Act provides grandparents with the same rights as parents.

Before any order is made, the Court will make a determination about what arrangements are in the child’s best interests. This may include ordering all parties to participate in a family report. A family report is a written document prepared by a psychologist or social worker, who will interview all parties and the children (if appropriate) and make recommendations to the Court about what orders are in the child’s best interests. The Court is not bound by the recommendations of the family report writer, but the report forms an important part of the evidence before the Court.

The Court will encourage all parties to come to an agreement about parenting matters to avoid the need for costly and often protracted adversarial proceedings in the Court. It is possible to secure a parenting order by consent, which means no one is required to personally attend Court.

In addition, parents and grandparents who are involved with the care and welfare of children can enter into a parenting plan. This is a written agreement signed by all parties that addresses care arrangements for children.

There are important differences between an order and a parenting plan and it is important to obtain legal advice before signing any document detailing arrangements for children to ensure it is appropriate for your individual circumstances.

To speak with one of our team about any family law issue, please call 07 3231 2444 or email lawyers@cgw.com.au