By Samantha Henderson

15 November 2019

You have to be a parent to bring family law parenting proceedings… don’t you?

A relationship breakdown can have far-reaching effects on a family beyond the simple scope of the immediate family involved. When it comes to parenting disputes, extended family members such as grandparents, aunts, uncles and cousins often have a vested interest in the matter as the ability for such relatives to spend time with the children of the separating parents can be significantly affected by the shifting landscape of family dynamics. The question is, do children have any rights to spend time with their extended family? The short answer is yes!

The Act on Extended Family

The Family Law Act 1975 (Cth) recognises that:

“children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.

While this does not provide that a child must spend time with their grandparents or other relatives, the Courts are bound to consider the best interests of the child as the utmost concern when determining parenting and other disputes involving children, including:

  1. The nature of the child’s relationship with their grandparents and other relatives;
  2. The likely effect of any change in the child’s circumstances, including the effect of any separation from grandparents and other relatives; and
  3. The capacity of the child’s grandparents and other relatives.

Likewise, grandparents and other relatives concerned with the care, welfare and development of the child can institute family law proceedings, apply for parenting orders and be included in parenting plans that detail circumstances such as, by way of example:

  1. where the child lives;
  2. who the child spend time with;
  3. the allocation of parental responsibility for the child;
  4. the communication the child has with other people; and
  5. the maintenance of the child.

In fact, grandparents and relatives are entitled to commence family law proceedings at any time and regardless of whether the parents are together, separated or in the process of separation.

Some Examples

In the case of Candello & Parnell & Anor [2019] FCCA 2347, a grandmother brought an application to enable her to communicate with her grandchildren in circumstances where the happily married parents were opposed to this contact.

Dunkley J determined in this case that:

“an intact family unit does not automatically mean the decision making relevant to their children by those parents usurps the family law legislation so as to automatically enable them to decide a child is not to have a relationship with a grandparent…because a child has a right to a relationship with a grandparent”.

Accordingly, His Honour held that the grandmother was permitted to write to and send gifts to the children on their birthdays and on two other occasions each calendar year.

Similarly, in the case of Church & M Overton & Anor [2008] FamCA 953, Benjamin J stated that:

“the (Family Law) Act supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interest. However, any determination of the best interests of the child or children should be informed by the family dynamics between the children’s parents and grandparents. In that regard, the views of the parents are significant, but not necessarily determinative”.

Conclusion

When determining whether to interfere in the relationship between a child it’s grandparents and/or other relatives, the Courts may take into consideration a wide variety of circumstances.

These include:

  • the historical involvement of the person in the child’s life,
  • the regularity of historical communication and time spent together,
  • practical and geographical issues, and
  • the positivity of the influence of the person on the child.

Often, parenting applications brought by grandparents and other relatives involve allegations of abuse and/or family violence against a child by a parent. If you are concerned about the safety or welfare of your grandchild, niece, nephew, cousin or any other family member, you should always voice your concerns and act protectively.

 

For further information on children and parenting issues, please do not hesitate to contact a member of our Family Law Team.

 

Disclaimer
The material contained in this publication is meant to be informational only and is not to be construed as legal advice. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

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