In recognition of the importance of grandparents rights to a child, section 65C (ba) of the Family Law Act 1975 (Australia) specifically allows a grandparent of a child to apply for a Parenting Order of a child.
Parenting Orders deal with who has parental responsibility of a child, who the child will live with, previously known as ‘custody’ and with whom the child can spend time with known as ‘access’. Grandparent access arrangements can be face to face but also include telephone, facetime and other forms of communication.
Prior to applying for a parenting order, the grandparent will need to attend family dispute resolution to try and resolve parenting matters unless there is an exemption due to child abuse or family violence.
In considering whether to make a parenting Order, section 60CA of the Family Law Act (1975) provides that the Court’s paramount consideration is what is in the best interest of the child. The factors the Court considers in determining what is in the child’s best interest are listed in section 60CC of the Act. There are a number of factors for example-
(a) The need to protect a child from harm;
(b) Particular reference is made to grandparents in the additional considerations listed in section 60CC (3) for instance the Court will consider the nature and relationship of the child with other persons including grandparents;
(c) The effect of any change of an arrangement will have on the child;
(d) The ability of the parents and grandparents to provide for the emotional and psychological needs of the child;
(e) The child’s views, age and maturity.
Grandparents can apply for custody of grandchildren however these Orders are often only made when one of the parents or both parents do not have capacity to care for the child or the child is of an age where they are considered mature enough to express a view.
Other applications that can be made by grandparents are for time with their grandchild. The outcome of this will depend on the nature of the relationship between the parents and the grandparents and again the factors that the Court considers as to what is in the best interest of the child.
In cases where one parent is applying for time and the grandparent is a parent of that party it can be beneficial at times to support the parent with their application rather than issuing your own application for time. The reason for this is that you become a separate party to the proceedings and as a result you may be competing with your own child’s time arrangements with their child. Each case is different, and you should seek legal advice to consider your options.