Grandparents and Family Law

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Talk to Grandparents Support Group NSW 27 February 2003

Author: Andrew Corish BA LlB – Accredited Specialist Family Law

Publish Date: February 2005

Grandparents do have rights under Family Law to maintain a relationship with their grandchildren.

The position and importance of grandparents were strengthened by the 1995 amendments to the Family Law Act. The amendments inserted new “objectives” at the beginning of the children’s section, in Section 60B, including that:

“ children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development .”

Grandparents were for the first time specifically mentioned in Section 65C as persons capable of making application for parenting orders under the Family Law Act. They always were able to do so, but the amendments gave grandparents special recognition and status.

The way the Family Court approaches grandparents’ applications is illustrated by two cases.

In Stevens and Lee (1991) FLC 92-201 the paternal grandmother applied to have contact with her five-year old grandson. The father of the child had died as a result of an act of arson, when the child was two. There was great hostility between the paternal grandmother and the mother and the grandmother and the grandmother had received little contact with her grandchild for some years. The judge, Justice Kay, said as follows:

“From my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater the exposure the child can have to his biological links with his paternal grandparents, the better for the child, short and long-term. We live in troubled economic times and by way of example, in 20 years’ time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.”

However, in view of the ongoing conflict, he was not prepared to order ongoing contact for the time being, except by way of letter, Christmas and birthday gifts, provision of photographs, and school reports.

Shortly afterwards, another decision was handed down in the matter of Bright (1995), FLC 92-570 . This was a decision of Justice Trevyaud. It was also an application by paternal grandparents for contact with their grandchild who was two and a half. They asked for one weekend per month and that the parents share the driving of some 400 kilometres. It is not clear, but presumably their own son as well as the mother opposed the application. The parents said the child would fret if away from her mother and the child should not be embroiled in a dispute between parents. The judge said he had no hesitation in awarding the grandparents contact of one weekend per month, on the basis that they do the travelling. The judge referred to the recently decided case of Stevens and said:

“His Honour was at pains there (in the Stevens case) to point out, as I do now, that it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.”

The judge noted over the past few months that the child had developed a close bond with the grandparents and said it seemed not just desirable but “absolutely essential” that this relationship continued. The judge was not impressed by the parents’ arguments that the child would fret away from her mother, and commented that some short-term adjustment was necessary for the overwhelmingly greater long-term benefit. The judge was particularly unimpressed by the argument of the parents that the child should not be embroiled in an argument between parents. He said:

“If in fact the parents and the grandparents have fallen out, then so be it. But to seek to embroil a little girl of two and a half in a dispute between adults seems to me to be outrageous.”

The parents could not both raise the dispute and then seek to rely upon it, in His Honour’s opinion.

Both these cases were just before the new Family Law amendments came in. Possibly Justice Kay may have been more supportive of the grandmother if the amendments had been in place.

So grandparents can and should do something about it if they are being deliberately alienated from their grandchildren. The cases indicate that the less hostility there is, the better. Grandparents get much less support if they are causing disruption and disharmony to their grandchildren’s lives, however justified their anger may be. Generally grandparents are expected to see their grandchildren at the same time as their own chid has contact. However, if there are special circumstances, or if their child won’t or cant seek contact, or if their own child is the problem, then grandparents can bring action. Probably the grandparents need to do the travelling and incur the expense and should try and fit in their contact with the parents’ and certainly the child’s convenience as much as possible.

Needless to say, court proceedings are the very last resort. They are very undesirable. All efforts at negotiation and conciliation should be tried first. Mediation organisations such as Unifam, Centrecare, Relationships Australia and private mediators can be of great benefit. You can go and see them initially and discuss the situation with them and get support and suggestions. The mediators can then take the matter forward by contacting the parent and inviting him or her to a meeting, to discuss problems and resolutions. There is some expense involved in mediation, but it is quite reasonable. You can no longer go to counselling at the Family Court, unless proceedings are issued, but thereafter the counsellors can be of great benefit.

If proceedings are necessary, it is always good to get advice from a lawyer and pay for a lawyer to represent you, if you can afford it. Most grandparents will not be in a position to pay large sums for legal representation, nor should they do so. Grandparents should consider bringing the proceedings on their own, perhaps after seeing a lawyer and getting a lawyer to draw their initial documents.

The proceedings can be brought in the Family Court, the Federal Magistrates Court or in Local courts. The Federal Magistrates Court and Local Courts have some advantages, in that you get your material on quicker and get a quicker decision and a large percentage of persons in those courts are unrepresented.

The documents should emphasise the positive things you can bring to your grandchildren and criticism of the parents kept to a minimum, unless their poor parenting or unreasonable actions towards you are directly in issue and relevant to the case.

As in the Stevens case, the grandparents’ contact in a difficult situation may initially be limited to telephone, letters and gifts. However that can still be of great benefit and keeps the door open for greater contact as the child grows older.

Once orders are made, they are binding and enforceable, and can be enforced by an application to the Court. Needless to say, this is also difficult and thankless work to bring an enforcement application, but can be done and can be effective.

The Family Court has an excellent website ( www.familycourt.gov.au ) and conducts regular information sessions. The Federal Magistrates’ Court also has an excellent webstie ( www.fms.gov.au ) and has numerous helpful resources. However there is a paucity of good material about how to help yourself in the courts, which hopefully will be rectified soon.

Andrew Corish

Accredited Family Law Specialist

Staunton & Thompson Solciitors

Manly and North Sydney

Ph: 9977 5000

Email: arc@stlegal.com.au