Your son or daughter is getting divorced. After the news sinks in, your thoughts turn to your grandchildren. It’s not fair that they should suffer. Will you be allowed to give them the support you know they need? Will your relationship with them change? What will your role in their lives be? Will you even be allowed to see them?
Children have a right to spend time 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).
If you are a grandparent who has been affected by a family breakdown you can apply to the Court to seek parenting orders in relation to your grandchildren. The two most common types of applications are:
- An application to spend time and communicate with the grandchildren. These applications are usually made where the parents are refusing any meaningful relationship between the children and the grandparents. The type of contact likely to be granted by the Court will depend on the individual circumstances of the case, however it is usually less time than is ordered in favour of a parent.
- Applications to obtain parental responsibility for the children and orders for the children to live with you. These applications are usually made where both parents are unwilling, unable or lack the capacity to care for the children (for example, as a result of addiction problems or family violence).
In deciding parenting arrangements, the Court must regard the best interests of the children as the paramount consideration. In determining what is in the best interests of the children, the Court must examine, weigh, apply and make findings as to various considerations, including the benefit of the children having a meaningful relationship with both parents and the need to need to protect the children from harm and/or family violence.
Unless there are exceptional circumstances, prior to making any application for parenting orders, parties must attempt mediation and must consider entering into a parenting plan.
Armstrong Legal recently acted for a grandmother and second cousin of a child where both of the child’s parents had been in and out of jail since the birth of the child and there was a history of family violence, neglect and addiction. The Court found that it was in the best interests of the child for the grandmother and second cousin to have sole parental responsibility for the child and for the child to live with them and spend supervised time only with the child’s parents. This case shows that in appropriate cases grandparents and other significant people in the children’s life can obtain the parenting orders necessary to protect children from harm: see >Pohan and Anor & Kueffer and Anor  FamCA 1040.
Should you require further information, we recommend you contact Armstrong Legal to organise a without obligation conference with one of our experienced family lawyers to clarify the issues and options available to you.