Do I have a legal right to spend time with my grandchild?

Do I have a legal right to spend time with my grandchild?

Strictly speaking no, you do not have an automatic right to spend time with your grandchild.

Notwithstanding that, any person “concerned with the care, welfare and development” of a child is entitled to commence child-related proceedings seeking orders, whether the parents of the children are together or separated.

In Venkatesan & Pawar [2007] FMCAfam 1109, Federal Magistrate Altobelli said that parties issuing such proceedings need to have “… some form of relationship between, or involvement with, the child in a meaningful sense in order that the person who makes the application can have standing.”

Section 64B(2) of the Family Law Act outlines what children’s orders may deal with, including whom a child is to live with, spend time with and communicate with.  The Act specifically outlines that those “persons” include grandparents.

The Court recognises that children have a right to regularly spend time and communicate with both their parents and other people significant to their care. The Court will also take into account a number of issues in determining what is in a child’s best interests.

Some of those considerations include:

(a)  The need to protect the child from harm for example, from being exposed to family violence;

(b)  The nature of the relationship of the child with other persons (specifically including grandparents);

(c)  Any views expressed by the child (depending on their age and level of maturity); and

(d) The likely effect of any changes in the child’s circumstances, including the likely effect of separation from either of their parents;

If after consideration is given to these issues, a Court determines if it is in a grandchild’s best interests to have a relationship with their grandparent protected.

Take Note!

If you have significant concerns for your grandchild’s welfare or safety, you should immediately talk to police or report your concerns to the Department of Family and Community Services (“FACS”).

If you report your concerns to FACS you will be taking action under child care and protection laws, which is different to family law.

Of course all families are unique and if you have any questions regarding the care of your grandchildren you should seek independent legal advice regarding the facts that are relevant in your matter.