A Child's Right to Spend Time With Their Grandparents

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Published by Preston Law on 17/02/2020

Grandparents can play an important role in their grandchildren’s lives post-separation, particularly where there was previously a close relationship prior to the separation.

What happens when contact between a grandparent and their grandchild/children is being blocked? What are the child’s rights? It’s not always a clear-cut situation.  As in any situation, it’s best to speak to a family lawyer who will take the specifics of your individual situation into consideration.

What are the rights and best interests of a child? 

Section 60B(2)(b) of the Family Law Act 1975  provides except when it is or would be contrary to a child’s best interests, children have a right to spend time on a regular basis, 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).

In deciding if an order should be made for a grandparent to spend time or communicate with their grandchild, the Court must determine what is in a child’s best interests pursuant to section 60CC(3)(b) of the Act. 

The primary considerations are:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Some of the additional considerations are:

  • any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
  • the nature of the child’s relationship with:
    • each of the child’s parents; and
    • other persons (including any grandparent or other relatives of the child);
  • the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from;
    • either of their parents; or
    • any other child, or other person (including any grandparent or other relative of the child), with whom they have been living;
  • the capacity of:
    • each of the child’s parents; and
    • any other person (including any grandparent or other relatives of the child);

to provide for the needs of the child, including emotional and intellectual needs;

  • any family violence involving the child or a member of the child’s family
  • any other fact or circumstance the court thinks is relevant.

What are the options if visits are being blocked?

Grandparents can explore the option for Family Dispute Resolution. A pre-mediation or intake can establish whether a mediation session would be in the best interests of all parties concerned.  The types of things considered include: 

  • The previous relationship between the adults, as well as the level of attachment to the grandchildren;
  • How regularly the interaction between grandparents and grandchildren occurs, since the grandparents may or may not already have played a significant practical and/or emotional role in the children’s lives;
  • The reasons for any lack of previous communication, pre-or post-separation between the parents, children and their grandparents;
  • The existence of previous orders and the reason for the changes in time spent with the grandparents.

If the matter is not resolved at mediation grandparents may apply to a court for a parenting order for a child to live, spend time, and communicate with a grandparent.

If you need advice on a family law matter, speak to our experienced team at Preston Law in Cairns.

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