Grandparents Rights in Family Law
In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page discusses the assumptions and roles of grandparents in parental rights and other family law concerns.
G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. I was admitted in 1987, and right from the beginning of my legal practice, I started doing family law. I decided to specialize in 1988, and since 1996 I have been an accredited family law specialist with the Queensland Law Society.
I’ve acted in many cases with grandparents concerned about their grandchildren. And there are some basics to know.
The first thing is grandparents don’t have rights. There’s this common assumption under Australian law that parents have rights. No, you don’t. There’s a common assumption under Australian law that grandparents have rights. No, you don’t. Last year, in 2021, I remember listening to a court case. I was waiting my turn and the father said to the judge, Well, I’m dealing with my parental rights to only receive a lecture from the judge that under the Family Law Act, our legislation that deals with divorce and children, parents don’t have rights. Children do. Parents have responsibilities.
Those responsibilities, of course, are not thrown on grandparents, at least not in a legal sense. Parents have those responsibilities. The first issue for grandparents to consider is if you’re going to go to court, what can I do? How can I file?
Well, of course, assuming that you meet all the pre-action procedures, so there’s generally an expectation, subject to safety risks or urgency, that you engage in family dispute resolution or, as we more commonly call it, mediation.
If you’ve done that, then you can file in court. Well, anyone can file in court in parenting proceedings, as a judge has said, but only someone who is standing can actually proceed with that application. So you can file today and get knocked out tomorrow. And if you get knocked out, obviously a cost order could be made against you. So who actually has standing under the family or with parenting proceedings?
Well, it’s any parent, grandparent or anyone else concerned with the care, welfare and development of a child.
The good news, therefore, is that a grandparent has the right to bring proceedings. Under the Family Law Act, you don’t have to go through an extra hurdle to convince the court that you should be able to bring proceedings. And then what do you want to achieve at the end of that? Well, grandparents cases, from my experience, broadly fall into two categories: where grandparents want to spend time with a child and the other one where grandparents feel the need for the child to live with them.
So let’s talk about the first, and that is when grandparents want to see the child. These cases are very, very difficult. Typically, the grandparent has had the grandparents have had a falling out with their son or daughter, and this might be because their son or daughter is argumentative or has issues with drugs and alcohol or violence or, as I’ve commonly seen, their spouse is difficult. And if we think of that common relationship between mother-in-law and daughter-in-law, which is often seen as being poisonous, that’s probably a good description.
What do you do in those cases? The parents in those cases often dangle the children on a string. Well, if you fall within our orbit and you are prepared to do all the things we want you to do, then you can see the child. Well, some grandparents are obviously prepared to do that. Others aren’t. And if you’re not, then that can be difficult because the court might allow might order time to occur, but it will be limited.
And it might be, for example, once a month, something in that order. If you’ve got long-standing arrangements with your grandchildren, that’s different. That makes it a lot easier because you can say suddenly it’s been chopped off, and we need to ensure in the best interest of this child or these children that an arrangement is in place. But what if that couple spin up and you’re wanting to spend time as a grandparent with your child? Well, this is often seen by the court as a stalking horse.
And I’ll give the example, if Bob, whose dad, he’s got a few problems, he’s got a problem with alcohol, he’s got a problem with drugs and mental health and with violence, and he’s not seen as though he’s really doing much good by the children, and he might end up with supervised time in a contact center.
And you, as Bob’s parent says, well, hang on. Surely the child can spend time with me. The court’s often concerned about that, not about having the relationship with you, but whether that might be used as a stalking horse to avoid Bob’s requirement to go and spend time with the child under supervision, namely, come to your place and have it unsupervised.
So in that circumstance, often the court will say, well, no, it should be at the contact centre. You basically have to convince the court that you are someone who is really concerned about this child, making sure that this child is safe and ensure that the time that you have isn’t with an at risk parent. So that can be difficult. Sometimes grandparents when they want to have time with a child, and there isn’t that issue. But dad has, for example, each alternate weekend.
So the children go and see them each alternate weekend. They might have a Wednesday night in the other week, and half the school holidays might start on the Monday. So start on the Friday and finish on the Monday his weekend time. And the grandparents think, oh, wait on, we want to have time, too, and maybe the other weekend. The court generally won’t be sympathetic to that because primarily the court be wanting to divide up the time between the parents.
The child isn’t, after all, a Salami that can be sliced indefinitely and wants to make an arrangement that the child can cope with. So in that kind of circumstance, the court would normally be saying, “Well, your time should occur when the child is with your son or daughter.”
The other circumstance that arises is where the parents really have let down the children. And the typical examples are where the parents have a problem with drugs or alcohol, mental health, domestic violence, or all of them. In those circumstances, grandparents look on in despair at the care arrangements for their grandchildren. I’ve acted in a number of cases for grandparents, either grandfather or both grandma and grandpa or grandma alone, because sometimes there’s only one grandparent where they’ve acted and acted decisively to protect their children. Only the other day I got a message from my grandmother.
She came and saw me quite some time ago, and she and her husband were really depressed because she could see that their child and their child’s ex were really letting down these children, their grandchildren, just terrible usual issues of neglect, violence, and substance abuse. And I said, “You’ve got to do something.” And of course, she was reluctant to do something because she saw herself as a grandmother, not as a parent. And I said, “Much as you might love your child, the whole reason that you’re here in the first place is to protect your grandchild. You cannot let your grandchild grow up in such circumstances. Each of your grandchildren need that protection. You’ve got to go and do something.”
And of course, the only place that they can actually do something where there isn’t an agreement, where something can be forced is a court order. Court should always be the option of last resort, but that last resort exists for a purpose that courts can order things to happen. Anyway, off she trotted and I wondered how things went.
And after a while, she let me know and said, well, we decided we wanted to go off to court and we took action. We made sure we went to protect those children. And the other day she sent me a message that started, thank you. And what was the thank you about? Here is a photo of the two kids.
The judge in the Federal Circuit and Family Court of Australia had made final orders, saying that the children would live with them and they would have parental responsibility for the children.
“You gave me the balls,” she said, “to go and take action. And I went and did it. And as a result, we protected our grandchildren.”
In those circumstances, grandparents have a vital role to play.
On my shelf in my room, I have a photo of a six-year-old girl. She’s now an adult. I saw her last year. I started acting for this girl’s grandmother when this girl was only a couple of months old. Sadly, the court case dragged on.
When the court case was over, it restarted. New set of court proceedings occurred. Why I acted for grandma was there was no grandpa. And my client’s daughter, sadly, was a drug user. She was a heroin user.
She had been introduced to heroin by her boyfriend, who had also beaten her up. And he, of course, was the father of this child. So we had that usual combination of substance abuse, violence, mental health, and neglect all in one. And my client said to me, “I can’t let my baby granddaughter be vulnerable.” And I agreed with her. She couldn’t. So we went to court, and she was successful. She didn’t have a fight with her daughter. Daughter was supportive. The daughter was not capable of looking after herself.
The fight was with the father. And it took a long time to get there. My client was an angel. She managed to ensure that her granddaughter went to a private school. She had dancing lessons and music lessons that appealed to all her talents.
She had a happy life, even though she was well aware of being let down by each of her parents. And I always wondered, in that case, what happened. I wondered whether my client would get too old and not be able to care for her granddaughter and die. And that this granddaughter would be cast out into the ocean of humanity, vulnerable to repeat what her parents had done. It’s one of those things that just go to the back of my head.
Anyway, I was so glad last year when I saw the granddaughter. Sadly, my client had died. She was very very old. And in the last couple of years of her life, she’d been cared for by her granddaughter because my client had dementia.
And what did the granddaughter say to me? She was grateful for her life. She was much loved by her grandmother and other family members and friends, not by her parents. She felt sad about her parents. Her mum had died in the meantime.
But she’d had a good life and she had a good life because her grandmother loved her, held her up and told her every day she loved her and took that decisive action in the family court to make sure that her granddaughter was safe.
If you fear for your grandchildren, for goodness sake, get advice. Get legal advice with Brisbane Family lawyers now. Don’t wait around for it. Get it.
You want to make sure your grandchildren are safe. You want to make sure that they’re not subject to abuse. You don’t want to continue the cycle of abuse and violence. Take care. Good luck.