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Grandparents’ Legal Right To See Grandchildren
The Family Law Act states the importance of children having a relationship with grandparents and other significant family members. Although the Act does not give Grandparents the automatic right to see their grandchildren, it does provide the right to seek Court Orders which would allow them to spend time with the children. In some situations, the orders sought from the Court may include an aspect of the children living on a permanent basis with the Grandparents.
What is the Position under the Family Law Act?
The Family Law Act provides the protection of the children is paramount. This principle applies Australia-wide and primarily focuses on the rights of the children to be cared for by parents, their welfare and other such development. This also includes the children’s relationship with their grandparents.
The factors used by the Court in determining what the best interests of the children are set out in section 60CC of the Family Law Act. This is also commonly referred to as ‘Additional Considerations’.
The reference to Grandparents is mentioned multiple times throughout this section, with the Court placing significant consideration to the following factors:
- The nature of the relationship the children have with the Grandparents (or other significant relatives of the child);
- The likely effect of a change on the child, including the effect of separation from the Grandparents; and
- The capacity of the Grandparents to provide for the needs of the child.
Whilst there are other factors that the Court may consider relevant, the final decisions will ultimately be factors that directly relate to determining the best interests of the children. A common situation where the Court is likely to grant the Grandparent of a child with parental responsibility is where the child has been subject to harm/abuse or has a significant risk of further harm/abuse, or where a parent of the child has a serious addiction to alcohol/drugs and no longer has the capacity to care for the child.
Court Applications Made By Grandparents
In these situations, the Court may hear an application made by a Grandparents to have the child enter their care either temporarily or permanently. However, a court application would be the last resort, with mediation being a suggested entry point in regard to proceedings.
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