Grandparents have a special role in a child’s life, but sometimes parent’s do not allow them to see their grandchildren. Grandparents may also be concerned about the wellbeing of their grandchildren and do not know where to turn.
The Family Law Act outlines that it is in the best interests of the child for them to spend time with and communicate with not only their parents, but other people who are significant to their care, welfare, and development such as grandparents. This means that according to Family Law, grandparents do not have an automatic right to have a relationship with their grandchild, but a grandparent can apply to the Family Court for Court Orders especially if they are concerned about the care, welfare, or development of a grandchild.
Whilst the Court values the role of grandparents, there are many factors that come into play when deciding what is in the best interest of the child in general. These factors must be considered before an Order can be made for the grandchildren to live, spend time with and/or communicate with their grandparents. At West Coast Legal we appreciate the important role grandparents play in a child’s life.
What is meant by ‘best interests of the child’?
When making decisions about children, the Family Court places the greatest importance upon the principle of the ‘best interest of the child’. This principle is explored by considering ‘primary’ and ‘additional’ considerations.
As every family is different, each case will have its own unique features so not all considerations may be relevant to each case. To find out more about primary and secondary considerations, click here to view a Legal Aid WA fact sheet.
It is important to remember that whilst primary and secondary considerations are important, the overriding consideration is always going to be to protect the child’s safety.
Can a grandparent make an application for a parenting order?
If a grandparent is concerned about the care, welfare, or development of a grandchild they may make an application for a parenting Order with the Family Court. However, before an application can be made, the Family Court requires people to attempt Family Dispute Resolution first. In some cases, parents can agree to issues such as the grandchild spending time with their grandparents without the need for Family Court intervention.
If Family Dispute Resolution is unsuccessful, a certificate will be given which will allow you to file an application with the Family Court. There are some instances where you do not need a certificate before filing. This is, in circumstances where there are reasonable grounds to believe there has been or is a risk of abuse or family violence. If you are unsure of whether you can be exempt from attending Family Dispute Resolution, contact us at West Coast Legal and we can explore your options with you.
What type of Orders can the Family Court make?
There are different types of Orders the Family Court. Parenting Orders will deal with:
- Who a child lives with,
- Who a child spends time with,
- Who has parental responsibility for a child;
- What communication a child is to have with others, such as by telephone or email; and
- Any other aspect relating to the child’s care, welfare and development.
A grandparent can apply to the Family Court for orders that their grandchild lives with, spends time with or communicate with them, and even for parental responsibility in some cases.
What happens if a grandparent has been caring for a grandchild, and the parent’s now want them back in their care?
If there are Court Orders already in place, and a parent wishes to take the child back into their care then the parents will need to apply to the Court for the Orders to be varied.
If there is already an informal agreement in place, such as a parenting plan, a grandparent may want to consider formalising the agreement. West Coast Legal can assist in formalising the agreement with the Family Court by way of a consent order, which is signed by the parents. The benefit of having the agreement formalised is that a Court Order is enforceable, whereas a parenting plan is not. This offers clarity and security.
If there is not an informal agreement in place, and it is unlikely that the parents will agree to a consent order application, then a grandparent may need to consider Family Court action. This is particularly important in cases where a grandparent does not believe it is in the best interests of the child for them to resume living with their parents, for example if there are concerns around risk of family violence or abuse. We recommend you seek legal advice from West Coast Legal before commencing Family Court proceedings.
What if a grandparent is concerned for the immediate safety of a grandchild?
Whilst the Family Court is one option to resolving a dispute regarding a grandchild, if the child is in immediate danger or there are great concerns for their safety it is best to talk to the police or the Department of Communities.
Contact West Coast Legal
If you are a grandparent who is concerned for their grandchildren or have not been allowed to spend time with them, you may seek legal advice from our experienced family and children lawyers at West Coast Legal. Contact us today for a free 15-minute phone call by giving us a call on (08) 9325 3334.
