Legal issues affecting older people

This section discusses the entitlements of grandparents, how family law affects grandparents, and what to do if you are the primary carer of your grandchild.

Grandparents can be key people in their grandchildren’s lives. The relationship between a grandparent and grandchild is often a special one. However, sometimes there can be a breakdown in family relationships and a grandparent may be denied a relationship with their grandchildren. This can be very traumatic both for the grandparent and the grandchild.

In other circumstances, a grandparent may find themselves as the primary carer of their grandchild. This may occur because the child’s parents are unable to provide adequate care for a short-term or a long-term period.

The Family Law Act 1975 (Cth) (‘FL Act’) deals with separation, divorce, division of property, and who a child will live, spend time and communicate with.

The Children, Youth and Families Act 2005 (Vic) (‘CYF Act’) deals with children who child protection services believe need protection.

Under the FL Act, grandparents do not have an automatic right to spend time with their grandchildren.

The law does not contain rights for parents or grandparents but prioritises the rights of children (s 60CA FL Act). This means that courts make decisions based on the best interests of the child.

The FL Act states that a child has the right to be cared for and to spend time with both parents, and other people who are significant to their care, welfare and development. This has been taken to include grandparents and other extended family; however, a grandparent is unlikely to be awarded the same time as a parent.

When determining a dispute, a court considers whether it is in the best interests of the child to spend time with a grandparent. In deciding what is in the child’s best interests, a court will consider:

• the child having a meaningful relationship with both parents;
• the child being protected from harm;
• the wishes of the child;
• the relationship the child has with each parent and other people, including grandparents;
• the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living;
• the practicalities (e.g. cost) of the child spending time with a parent or other significant person;
• the child’s maturity and cultural background;
• the right of an Aboriginal or Torres Strait Islander child to enjoy their culture.

Often, the best way to ensure an ongoing relationship with a grandchild is to maintain a positive relationship with the child’s primary caregiver. If a grandparent is being denied time with their grandchildren, they may make an application to the Federal Circuit and Family Court of Australia for parenting orders, which can include the child spending time with them.

Before applying to the court, a grandparent must attempt to resolve the dispute through participation in family dispute resolution or mediation (s 60I FL Act). The object of this is to compel people to make a genuine effort to try and resolve the dispute. In situations where family violence has occurred, a party may be exempt from having to attend mediation.

If the matter fails to resolve at mediation then the mediator will provide a certificate, known as a section 60I certificate, and an application for parenting orders can then be made to the Federal Circuit and Family Court.

For a list of agencies that provide family dispute resolution or mediation, see ‘Contacts’.

In situations when a parent is unable to care for their child, a grandparent might find themselves as the primary carer of their grandchildren. This may occur through an informal agreement between the parent and grandparent, or because there are protective concerns and the child has been removed by child protection services.

A formal agreement to evidence the care arrangement may be needed for the purposes of seeking financial assistance, enrolling the child into school or consenting to medical treatment.

If a grandparent wants to formalise the care arrangements, and the child is not subject to a court order or protection application, they can create a written agreement that outlines the child’s living and care arrangements. This is called a parenting plan.

A parenting plan may be altered by agreement but will be unenforceable in the event of noncompliance. A parenting plan may be relevant to any future application for parenting orders.

If a grandparent has concerns about a parent adhering to an agreement or parenting plan they have made, they can file an application for consent orders with the Federal Circuit and Family Court. The court will consider the best interests of the child, so before an application for consent orders is filed, the factors contained in sections 60B, 60CA, 60CC, 61DA and 65DAA of the FL Act should be considered.

If the court accepts the application, the consent orders become binding on the parties in the same way as orders actually made by the court. Thereafter, the consent orders can be enforced by the court if they are contravened.

A grandparent who is the primary carer for a grandchild may be eligible for financial support from Centrelink.

Grandparents may also be eligible to claim Medicare benefits for their grandchildren’s medical expenses, and should seek legal advice about their eligibility for child support. (For Centrelink’s contact details, see ‘Contacts’.)

The CYF Act deals with situations where child protection services believe that a child is in need of protection. The Children’s Court hears proceedings relating to an application to protect a child. This court may appoint a grandparent as a child’s primary carer, depending on circumstances and the child’s best interests.

Section 10 of the CYF Act sets out principles for determining what is in the child’s best interests. As well as the need to protect a child from harm, protect their rights, and promote their development, these principles include:

• to ensure intervention into the parent and child relationship is limited to that necessary to secure the safety and wellbeing of the child;
• to strengthen, preserve and promote a positive relationship between a child and family members;
• to consider the views and wishes of a child;
• to protect and promote and Aboriginal child’s cultural and spiritual identity.