The Federal Circuit and Family Court permits parents to apply to the Court for orders to enable them to ‘spend time’ with their children, when a parent is not facilitating time with the child. Similarly, a grandparent or other person ‘concerned with the care, welfare or development of a child’ may apply to the Court to ‘spend time’ with their grandchild.
Our legislation acknowledges that a child’s wellbeing does not only entail a ‘meaningful relationship’ with their parents, but also recognises the importance of a child having a relationship with their grandparents and other carers. This right exists whilst a child’s parents are in the process of separation or if the child’s parents’ relationship is ‘intact’.
Our Court has made orders to facilitate children having contact for a myriad of reasons, including:
- As a consequence of the parent’s separation;
- As a consequence of a strained relationship with a parent(s);
- A parent has died;
- Concerns are held for a child’s safety;
- The mental health of a parent has declined;
- It is no longer safe for a parent to care for the child;
- One or both parents suffer from alcohol or drug addiction problems;
- There is violence in the child’s home.
The Court priority remains the ‘best interest of a child’. In deciding what is in ‘the best interest of a child’, our legislation requires the Court to assess two (2) tiers of considerations, known as the primary considerations and the additional considerations.
The Primary considerations include:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required to give greater weight to the consideration of the need to protect the child from harm.
The Additional considerations include:
- The child’s views (if age-appropriate) and factors that might affect those views, such as the children’s maturity and level of understanding.
- The child’s relationship with each parent and other people, including grandparents and other relatives.
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
- The practical difficulty and expense of the child spending time with and communicating with a parent.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- The attitude of each parent to the child and to the responsibilities of parenthood.
- Any family violence involving the child or a member of the child’s family.
- Any family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order, or
- the making of the order was contested by a person.
- Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
- Any other fact or circumstance that the Court thinks is relevant.
The Court also considers that a way of ensuring the best interests of the child is to consider that the child has 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)”
Grandparent’s therefore need to demonstrate to the Court that the reduced (or withheld) time between them and the child is detrimental to the child and results in a negative effect on their wellbeing.
The Court also considers the grandparent’s history of their relationship with the child, the nature of the breakdown, the child’s wishes (if age-appropriate), and the grandparent’s personal and financial circumstances.
In many instances the Court considers whether there is hostility between a grandparent and the parent/s, the physical and emotional needs of the grandchild and whether the grandparent is physically able to care for the child and ensure the child remains safe at all times.
The Court has demonstrated it will be cautious facilitating time between grandparents and a child/ren where there is acrimony between a parent and grandparent because of the effect it has on the child.
What process do I take?
If a grandparent wishes to commence proceedings, they apply to the Court after having complied with the pre-action procedures required by the Court, including attending Family Dispute Resolution (mediation).
They may also have a right to ‘join’ proceedings as an additional party, when proceedings are already ‘on foot’.
To obtain specialist advice about family law, children, separation and your legal rights, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you. ‘