By Antonia Marran, Lawyer

Grandparents are often a casualty of separation and divorce. Take for example a recent situation faced by one client: the paternal grandmother, a widow, had been a regular carer to the two young children of the marriage. She had looked after them two days a week from an early age at her home as both parents worked.  During COVID-19 she moved in with the family for three months to assist with home-schooling as by this time one of the children had started school. When the parties separated quite abruptly, the father’s time with the children was restricted to supervision at a contact centre which had the inevitable consequence that the grandmother’s time was also affected. Understandably, the grandmother, whose life for many years had been centred around the children, was completely devastated by the events. Not only was her son going through emotional distress, but her connection with her grandchildren had also been severed and she felt quite powerless to do anything about it. Fortunately, there was a somewhat uplifting end for this family because the parties were able to make significant progress reasonably quickly towards resolving their issues and they have now formulated an arrangement which allows for regular and meaningful contact. But not all stories are so positive. The point being that in many families, grandparents and other extended family members, fulfil an integral role in a child’s life. It is important to know that this relationship is recognised in family law and when a separation occurs, there are ways a grandparent can ensure that their time with a grandchild continues:

1. Parenting plan: An informal arrangement that is discussed and agreed upon by all the parties. It can be documented as an agreement, and it can provide for a grandparent’s communication and time with a child. This kind of option is useful particularly if the grandparents are part of the regular child-care arrangements because, although not legally binding, it provides some structure and certainty to the relationship.
2. Consent orders: The parents may choose for their parenting arrangements to be formalised as court orders which can be made by consent and are binding upon the parties. Within this agreement provisions can be made to include a grandparent’s time.
3. Apply to the court for parenting orders: The Family Law Act 1975 section 65C recognises that a grandparent may make an application to the court for a parenting order. The Act recognises that children have a right to spend time and communicate with people who are considered significant to their care, welfare and development. In the context of family law, this essentially means that if the court considers it is in the best interest of the child to have contact with a grandparent, then an order may be made. The option of going to court in the majority of cases should be the last resort, so before any application is made the court requires that parties attempt to resolve their issues through a parenting mediation also referred to as family dispute resolution.

For further information or assistance in this area of family law please contact the Family Law team at Mills Oakley Sydney.