Grandparents and Children
When most people imagine becoming grandparents, they imagine a happy warm relationship between them and their grandchildren. Similarly, many parents are hopeful that their children will be able to have a close and loving relationship with their grandparents. Unfortunately, sometimes, this just does not bear out for a variety of reasons. Your child may have passed away and the other parent may have cut contact with you. The grandparent in question might be abusive and the parent has had to keep the children away from their grandparent to keep them safe. It is important to know the role of grandparents in a child’s life, and what protections the law can offer grandparents and parents in this capacity.
Section 65C of the Family Law Act entitles a grandparent of a child to make an application for a parenting order for a child (‘grandparental applications’). However, it is important to understand that the family law makes its decisions based on the child’s rights and not the grandparents (see section 60B(2)(b) of the Family Law Act). Grandparents have no actual right to spend time or communicate with their grandchildren. It is the child’s right to maintain a relationship with people significant to their care, welfare and development that is given consideration by the court when making decisions regarding the time and communication a child should have with a grandparent.
The primary principle when making decisions for children is the ‘best interests’ principle, which is that when making a parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (section 60CA of the Family Law Act). Therefore, we must consider any grandparental application for time or communication with a grandchild in that context.
Grandparental applications generally stem from a parent (or parents) preventing the grandparent from spending time or communicating with a child, whether there is no contact at all, or infrequent or sporadic contact. Grandparental applications are generally made when a grandparent considers that the parent (or parents) of the child is not properly caring for the child, whether in a manner so serious that the grandparents might consider applying for custody of the child, or are otherwise providing adequate care but causing harm to the child by preventing the child from having a relationship with their grandparents.
On the flipside, parents who are presented with a grandparental application usually resist the application because they consider the grandparents to pose a threat to the wellbeing of the children, whether directly or indirectly (due to the harm the grandparents cause to the parents by maintaining contact), and the parents are likely to say that their decision to prevent the grandparent from having access to the child stems from a need to protect the child.
Case Studies
It is important to examine the caselaw regarding grandparental applications, as it gives insight into how the court balances the various factors that it must consider when deciding such an application. It is a difficult area of the law because a decision in favour of the grandparents necessarily overrides a parent’s ability to make independent choices for their children.
Church v Overton (2008) 40 Fam LR 357
This case illustrate how the existing relationship between a grandparent and a child can be important determinative factors in such cases.
Material Facts
The grandfather in this case lodged separate parenting applications to see all of his grandchildren, born of his three daughters. He sought the following outcome:
1. To be able to send letters, cards and presents to his grandchildren;
2. To have a video call with them once a month;
3. To spend time with them for two hours, four times a year; and
4. To know where the grandchildren lived and to have photographs of them.
All of his daughters opposed the application, except for the sending of letters and cards on a very limited basis. Their case against the grandfather was that:
1. The grandfather had been minimally involved in his daughters’ lives when they were growing up, as he worked extensively and left the day-to-day parenting to the grandmother.
2. The grandfather had behaved abusively towards the three daughters, including allegations that:
a. The grandfather was an alcoholic, and had demonstrated unsafe behaviours including giving alcohol to one of the daughter’s children (who was aged 3 at the time).
b. The grandfather had hit one of the daughters on one occasion;
c. The grandfather had kicked out one of the daughters when she was around 14-15 years old, when she became pregnant.
d. The grandfather had no relationship with the grandchildren, as he has never attempted to contact the grandchildren or send a birthday card.
3. That contact between the grandfather and the grandchildren would be personally distressing to all of the mothers, and that it would negatively impact their ability to care for and provide for the children.
4. That as the parents, they should decide who their children have a relationship with.
5. That it would not be in any of the grandchildren’s best interests to see or hear from the grandfather.
Discussion of Law:
Benjamin J explained that while grandparents had no special entitlements to see or communicate with their grandchildren and were simply an example of ‘other relatives’ who might be able to establish that they are significant to a child’s care, welfare and development.
The right of parents to make decisions about children.
Section 60B of the Family Law Act states that a principle underlying the act is for parents to share duties and responsibilities for children, and to agree about future parenting for the children. The presumption of equal shared parental responsibility would only apply to parents, and not any other relatives. Therefore, if parents jointly (or if a sole parent, solely) have a strong view regarding parenting decisions, courts should be very cautious about interfering.
“The defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference… In the absence of substantive issues as to the child's best interests, it is not the role of a court to peer over the shoulders of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.”
Therefore, it can be seen that the courts are reluctant to intervene with the decisions of capable parents, especially in circumstances where the parents have reached a joint decision as to the care and raising of their children. It presents a high bar for a grandparent seeking orders to intervene in a parent’s decision to cease contact between the grandparent and the grandchild.
In this case, there was no suggestion that any of the parents in this case were anything but loving and effective parents to the grandchildren.
Findings in this case:
The court found that, regardless of the history between the grandparents and the daughters, his current application was made genuinely out of love and desire to see his grandchildren, rather than spite. However, the court considered the grandfather to be a person lacking in insight as to how his own behaviour impacted his relationship with his daughters, and instead blamed the maternal grandmother for their relationship.
Importantly, the court found that any order made for the children to spend time or communicate with the grandfather would impact on the children by way of the unhappiness of their parents, particularly their mothers. Each of the mother’s gave strong evidence of their anger against the grandfather, and each presented a staunch refusal for the grandfather to have any contact with the grandchildren. One of the mother’s even expressed that she would rather go to prison rather than allow the grandfather to spend time with her children. As such, any orders requiring the grandchildren to spend time and communicate with the grandfather would be making them the proverbial ‘meat in a sandwich’. The grandchildren are likely to know of their parents’ disapproval and distress. It would upset a working arrangement.
Finally, the grandfather failed the test of convincing the court that he was a significant person to the care, welfare and development of any of the children. Having heard all the evidence, it could not ever be found to be in the best interests of these children to spend time with the grandfather when their parents are clearly deeply opposed.
The final decision of the court was to dismiss the grandfather’s application, aside from consent orders agreed allowing the grandfather to send cards and letters four times a year to the grandchildren, with the cards and letters only to be given to the grandchildren if asked for once they are 13 years old.
It is interesting to contrast this case against the case of Church v Overton with cases where there is a pre-existing relationship between the grandparent and the grandchild. It appears that this factor plays a significant role in the court’s decisions.
How can we help?
Whether you are a grandparent seeking to spend time and communicate with your grandchild, or if you are a parent who has decided to cease your child’s contact with their grandparents, we are able to provide tailored and specific advice as to your situation. Such applications primarily turn on their own facts, and it can vary greatly depending on the pre-existing relationship between the grandparent and grandchild, parental capacity, and other factors. It is important that you receive expert legal advice before bringing or responding to such a parenting application.
