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The extended family nucleus – grandparents and the Family Law Act

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There are different scenarios which may warrant the involvement of relatives when a family dispute surfaces involving children. Ever increasingly grandparents and other extended family members are relied upon by couples to assist in the daily care and upbringing of children.

In other cases, a parent is simply absent from a child’s life or a breakdown in care occurs perhaps as a result of parental drug use, physical or mental illness or family violence.

When matrimonial conflict occurs or a parent is unable to provide suitable surroundings for children to be raised, it may often be difficult for grandparents or other relatives to maintain a relationship with the children in some cases, may feel excluded from the resolution process.

The Family Law Act (1975) recognises the importance of a child’s relationship and bond with a grandparent or other relative and has established principles by which disputes should be determined. Unless it would be contrary to the child’s best interests, the Act provides that “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.

A law, however, providing that a grandparent or relative must spend time with the children does not exist.

In making a parenting Order in relation to the child including considering an application made by a grandparent or other relative, a Court must regard the best interests of the child as paramount.

To determine what is in the best interests of the child, the Court must take into account the following primary considerations:

  • the benefit of 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.

Additional considerations are also taken into account including:

  • any views expressed by the child and any factors such as the child’s level of maturity
  • the nature of the child with each of the child’s parents and other persons including any grandparent or other relative
  • the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or other person including any grandparent or other relative of the child
  • the capacity of each of the child’s parents and any other person including a grandparent or relative to provide for the needs of the child
  • any other fact or circumstance that the Court deems relevant.

Depending on the circumstances, relatives are capable of participating in the mediation process, negotiating and instigating Court action to seek provision to spend time with children the subject of the dispute.  Thinking about what the grandparent has contributed to the child’s life, the regularity of time spent together, the practical day to day issues and positive influence they can impart to the child in the future are important matters that should be addressed when pursuing this type of action.

It is important to note that the Court will consider the particular facts and circumstances of the case individually should the matter be litigated.

Provided that a child’s best interests remain a priority, the involvement by relatives in the appropriate circumstances may provide opportunities for children the subject of a relationship breakdown to explore nurturing relationships with their extended family in the future.

Our Family Law lawyers have a great deal of experience in these matters both in negotiating arrangements and the court process.  If you wish to have your matter considered or you have not received the legal assistance you need please contact us.

Author: Natalia Todorovic