One of the recurring problems of a separation between parents that we see is the effect on children spending time with their grandparents.
Usually the main focus is on the parent's time with the children and often the parents can be at logger heads over who the children are to live with and how much time the other parent will spend with those children. Quite often the role of grandparents and extended family is not given consideration in this process. It is simply overlooked.
It is generally accepted that during each parent's time with the children, they can make arrangements for the children to spend time with the grandparents and extended family as they see fit. Whilst this might work in the majority of situations, there are situations where this is simply not appropriate or doesn’t work.
For example, there could be a break down in the relationship between a parent and the grandparents. The grandparents may no longer have any contact with their son or daughter and may be left out of any arrangements to see the grandchildren.
Alternatively one parent may be refusing to let either the other parent or grandparents see the children. For example there may be allegations that the other parent is unsafe to be around the children due to violence or drugs, may be in prison, overseas or may have simply decided that they do not wish to have a relationship with the children.
In these cases, through no fault of their own, the grandparents may be excluded from time with their grandchildren.
"The Family Law Act provides that the “best interests of the children” are the most important consideration when making a Parenting Order. "
The Family Law Act 1975 (the “Act”) provides that the best interests of the children are the most important consideration when making a Parenting Order. We have previously written extensively regarding best interests of children and what that entails. Importantly, when determining the best interests the Act requires consideration of the nature of the relationship of the child with other persons including any grandparent or other relative of the child.
Can grandparents apply to spend time with their grandchildren?
So the Act states that these relationships with grandparents must be considered when working out the living arrangements for the children and also mean that a grandparent can apply for time with their grandchildren through the courts if required.
Every case is different and the specific circumstances of that case will give rise to a determination of what is appropriate for the child, but we would generally expect there would be good grounds for a grandparent to maintain their relationship with their grandchildren particularly if there had been no concerns prior to the relationship breakdown of the parents.
The law doesn’t give the grandparents an automatic right to see their grandchildren but what it also means is that one parent doesn’t have the right to determine that the children will have no relationship with either their own parents or their ex-spouses' parents.