Grandparents often play a significant role in a child’s life. The Family Court recognises the importance of the relationship between a grandparent and a child. In circumstances where a grandparent is not being afforded the opportunity to spend time with their grandchildren, a grandparent can make an application to the Family Court for ‘spend time with’ orders.
It is also possible, for grandparents to successfully make an application for ‘lives with’ or ‘sole custody’ orders in cases where a child may be at risk remaining in the full time care of their parents.
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child (e.g. extended family members such as aunts and uncles, siblings, or former step-parents), can apply for parenting orders in relation to a child.
Grandparents are able to apply to the Family Court of Western Australia for orders, among others, relating to the following:
- who a child should live with;
- who a child should spend time with and when, and whether such time should be supervised or unsupervised;
- who a child should communicate with, and whether such communication be by telephone or skype; and
- who has responsibility for making major long term decisions about the child.
You will be pleased to know that it is well established in family law that that there is no presumption or preferential position that applies as between a parent and a grandparent. As the Full Court said in Valentine & Lacerra & Anor  FAM CAFC 53 at :
“…an application for a parenting order by a non-parent [grandparent] is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration…”.
The Full Court in Yamada & Cain  FAM CAFC 64 also said at :
“…it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances which it is given or offered by those who contend for parenting orders [such as grandparents].”.
In cases between parents, the Court is required to apply a presumption that both parents have equal shared parental responsibility for a child (unless one of the exceptions to the presumption applies). This presumption does not apply to grandparents, and consequently, the Court is required to follow a slightly different legislative pathway, than it would follow in a case between parents.
The Court will only make parenting orders that it considers are in the best interests of the child. When determining what is in the best interests of a child, the Court must consider the primary and additional considerations set out in Section 60CC of the Act.
The primary considerations which the Court is required to consider when determining what is in the best interests of the child 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 or from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst the first primary consideration specifically refers to the child having a meaningful relationship with the child’s ‘parents’, the Court in Donnell & Dovey  FAM CAFC 15, stated that:
“… in a particular case, the maintenance of a meaningful relationship with a non‑parent [grandparent] may be equally important or more important than the maintenance [or establishment] of such a relationship with a parent…
The fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, … never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”.
The Court is required to give greater weight to the consideration of protecting a child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence, when considering the primary considerations.
The additional considerations which the Court is required to consider when determining what is in the best interests of the child are as follows:
(a) 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;
(b) the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture (including the right to enjoy that culture with other people who share the culture) and the likely impact any proposed parenting order will have on that right;
(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the orders, any findings made by the Court in proceedings for the order and any other matter;
(l) whether it would be preferable to make the order that would least likely lead to the institution of further proceedings in relation to the child; and
(m) any other fact or circumstance that the Court thinks is relevant.
A number of the additional considerations refer specifically to ‘parents’. The Full Court has made it clear that the additional considerations set out at Section 60CC(3)(m) of the Act, which allows the Court to consider “any other fact or circumstances that the Court thinks is relevant”, acts as a “catch all provision” in cases involving grandparents, and accordingly allows the Court to consider and apply any of the relevant additional considerations, despite them making specific reference to ‘parents’ only.
Although the presumption of equal shared parental responsibility does not apply to grandparents, a grandparent can seek an order to have sole parental responsibility for a child or to share parental responsibility with another. The question as to whether a grandparent should have parental responsibility for a child falls to be determined by the Court when deciding what is in the child’s best interests, having regard to the primary and additional considerations set out above.
If the Court determines it is in the best interests of a child for a grandparent to have parental responsibility (whether that be sole or shared), a grandparent is able to be included in making major long term decisions in relation to the child. These decisions include matters involving the child’s education, religion and cultural upbringing, health, name, changes to the child’s living arrangements that would make it significantly more difficult for a child to spend time with a parent or them. A grandparent with parental responsibility can also apply for a passport to issue for the child.
If you are a grandparent and are considering making an application for parenting orders in relation to your grandchildren, please do not hesitate to contact one of our family lawyers at firstname.lastname@example.org.