Family law can be complex when considering the needs and rights of a child, and even more complex still when considering grandparents and their role in caregiving. Oxford Partners have represented family units of all kinds, to create a future that is best for the children in question. The trouble is, all stakeholders can have a very different idea about what the best outcome looks like and with who. In some circumstances, grandparents may be one of the only viable options for a child’s safety and wellbeing, so it is important that they be considered.
While the law is black and white, there is still room for nuance and so here is a guide to grandparents legal rights under Australian Family Law.
Grandparent rights according to Family Law Act 1975
Australian family law abides by the Family Law Act 1975, which includes the consideration of grandparents in the case of separation, division, property division and child custody. In the event of one of these cases, grandparents can ask for time to see grandchildren by lodging an application through Family Court. They may also wish to apply for custody of children, although Family Act Law outlines that this entitlement is only accepted if it is in the best interest of the child.
The child also has a right to maintain contact with people who add value in their life by way of care, development and welfare. That said, grandparents should not expect visitation and communication based purely on this and should make the relevant applications. Engaging a family lawyer is an ideal way of knowing what your options are and when you need to submit the applications to be part of the proceedings.
Parenting plan and consent orders
If the circumstances allow, it is ideal to have the rights and consent of the grandparents written into the parenting plan by both parents. Following a divorce or separation, it’s common that parents will create a parenting plan which includes all the decisions made and anything that will influence the life of the child. This is usually made officially at Family Court, and so time can be saved by writing the grandparents into the parenting plan.
In the event that the parent or parents are unable to take care of the child, then Grandparents may have access to the child and could even gain sole custody. Once again, the best interest of the child is considered first and if the parent or parents show evidence of abuse, neglect or substance abuse then a judge might rule it.
To put it simply, the parents must be:
- unwilling to care for the child;
- unable to care for the child; or
- unfit to care for the child
Cultural considerations
Different cultures will of course have different perspectives when it comes to parenting and grandparenting, and so it is important that you apply a cultural lens when assessing a course of action for a family unit. For example, First Nations communities place deep importance on kinship care and have specific rights when it comes to a child’s custody.
Grandparent support and assistance
If the grandparent gains sole or shared custody of the children, they have government entitlements. Applications can be made to Centrelink to receive financial support to cover the cost of raising a child. What these entitlements are will vary depending on the circumstances and financial position of the grandparents. If the child or young person has a disability, then there will also be further support available through Centrelink and NDIS that will cover the needs of the child and the carer.
Generally speaking, grandparents may apply for the following supports through Centrelink:
- Grandparent Child Care Benefit
- Child Support
- Family Tax Benefit
If your child or grandchild is about to go through change following legal proceedings, you may wish to receive some practical and relevant advice.
Contact Oxford Partners today to fully understand your rights as a grandparent or parent and how family law can create the best outcome for the child.
(03) 9670 7577