The Family Law Act 1975 (Cth) is able to take into account a grandparent’s relationship with a child when making orders in relation to their care and wellbeing. Grandparents are specifically included in the Family Law Act and are able to make applications for the care of a child if it is in the best interests of the child. At Counsel Family Lawyers we work with our clients and explore all options in available in their situation.
A Grandparent who previously had an active role in their grandchild’s life may have their role limited after the separation of their child. In certain circumstances a grandparent may be a child’s primary carer and will have competing interests with the parents of the child in relation to care. The Court will consider the best interests of the individual child and their relationship with their wider family, including grandparents and other family members. Each case is determined based on its own facts and circumstances. At Counsel Family Lawyers we can advise you in relation to your own circumstances.
“A parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regards to the best interest of the child”- Valentine & Lacerra and Anor [2013] FamCAFC 53 at 43
Non-parents or grandparents will usually make an application for the primary care of a child in the following circumstances:
- When parents are incapable of caring for children;
- When children have been habitually cared for by people other than the parents;
- When DHHS or equivalent have indicated an intention to seek protection orders in relation to a child unless a non-parent applies to the Family Courts;
- Indigenous communities where a child may have been brought up by extended family members and/or the parent is unfit to care for the child;
- Where the biological parent is unfit to take care of the child due to alcoholism or illicit substance abuse; or
- Death of parent and siblings or others apply for parenting orders
A recent example of a grandparent seeking orders for the care of their grandchildren is the case of Scarle & Ringwood and Anor [2017] FamCAFC 57.
In this matter the mother had lived with the grandmother when the children were born and later moved out of the home and reduced her contact with the children in favour of her new partner. The father of the children lived interstate and had infrequent contact with them. He did not pursue any further time with the children in this matter.
The children had lived with the grandmother for most of their lives. The grandmother began seeing a new partner who had previously been charged with engaging in child sex acts. The mother of the children sought to have the children returned to her care. The grandmother opposed the application and sought to have the children continue to reside primarily with her.
The mother had serious drug and alcohol addiction problems and had previously been abusive towards the children.
Prior to the trial the grandmother ceased her relationship with her partner. The mother and the grandmother were granted equal shared parental responsibility of the children and the grandmother was determined to be the primary carer of the children on the condition that her former partner was not to be around the children. The mother could spend time with the children on two weekends in the school terms.
Written by Sarah Damon
If you would like to know more about grandparents seeking orders in relation to the care of their grandchildren please contact Sarah Damon at Counsel Family Lawyers on 9320 3900 or send an email to [email protected]
