It is becoming increasingly common for grandparents to play a major role in their grandchildren’s ongoing care and development. Accordingly, the Family Court places significant weight upon the benefit of a child having a meaningful relationship with their grandparents.
Section 65C of the Family Law Act 1975 (Cth) says that grandparent can apply to the Family Court for orders in relation to their grandchild. Grandparents are specifically referred to in the legislation along with parents and any other person concerned with the care, welfare and development of a child. This therefore entitles a grandparent to apply to the Family Court for orders that the child live with or spend time with them.
Further, under the Family Law Act 1975, the best interests of a child are the paramount consideration when making parenting orders. In determining what is in a child’s best interests, there are two primary considerations:
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.
In circumstances where there is evidence to suggest the child is at risk the Court will give greater weight to the need to protect a child from harm over and above the benefit of the child having a meaningful relationship with both parents.
There could any number of reasons why a grandparent may be concerned that their grandchild is at risk. Common scenarios include drug or alcohol use by one or both parents, mental health issues that impact temporarily on their parenting capacity, exposure of the child to family violence, or simply that a parent does not want to care for the children any longer.
If a child is at risk of harm in the care of his/her parents, and sufficient evidence can be provided, the Family Court may consider placing the child in the care of a grandparent until such time as the parent/s can show that they have the ability to care for the child. In the absence of evidence that it is safe for the child to return, the Court may consider that it is in the child’s best interests to live with his/her grandparents full time.
In determining whether it would be in the child’s best interests to live with their grandparents, whether on an interim or final basis, the Family Court will also take into account the nature of the child’s relationship with their grandparents and the role they have placed in the child’s care and development.
Normally parties to a Family Law matter must participate in Family Dispute Resolution prior to making an application to the Family Court. There are, however, exceptions to this in circumstances where there has been child abuse or family violence or where it would not be appropriate for the parties to attempt any kind of mediation.
If you are concerned that your grandchild is at risk of harm, you should seek legal advice as soon as possible. You may need to take action immediately. If your concerns are genuine and well-founded, it could prejudice your case for you to do nothing.
Contact us and speak to our expert Family Law team if you would like advice about how best to protect your grandchild.