Family Law Act was amended to allow grandparents to make an application to the Court

In 2000 the Family Law Act was amended to allow grandparents to make an application to the Court to be able to spend time with their grandchildren. To be able to make an order of this kind the Court has to satisfy itself that it would be in the best interests of the child for this to occur.

To determine if it will be in the child’s best interests the Court will consider the following two primary factors when determining whether it is in a child’s best interests to spend time with their grandparent:

• The benefit of the child having a meaningful relationship with the grandparent; and
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
• The Court will also look at the following factors contained in s60CC (3) of the Family Law Act when determining whether it is in a child’s best interests to spend time with their grandparent:
• Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
• The nature of the relationship of the child with A) each of the child’s parents and B) other persons (including any grandparent or other relatives of the child).
• The willingness of and ability of each the parties to facilitate, and encourage, a close and continuing relationship between the child and the grandparents;
• The likely effect of any changes in the child’s circumstances, including the likely effect of the child of any separation from A) either parent and B) any other child, or other people (i.e. grandparent);
• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
• The capacity of A) each of the child’s parents and B) any other person (i.e. grandparent) to provide for the needs of the child, including emotional and intellectual needs;
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents and any other characteristics of the child that the court thinks are relevant;
• If the child is an Aboriginal child or a Torres Strait Islander child;
• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
• Any family violence involving the child or a member of the child's family;
• Any family violence Order that applies to the child or a member of the child's family;
• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; or
• Any other fact or circumstance that the court thinks is relevant. Finally, the Court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.

The Court may also be guided by an Independent Children’s Lawyer and/or Family Report in these cases if necessary. An Independent Children’s Lawyer is an independent Lawyer appointed by the Court during a family dispute concerning a child’s welfare.

A Family Report will be prepared by a report writer who is a professional psychologist/social worker and an independent third party. The Report Writer will hold interviews with all relevant parties to the proceeding to determine what they believe to be in the best interests of the child.

Once all of the above-mentioned factors are taken into consideration the Court will make a decision as to whether it is appropriate for Orders to be made that a grandparent spends time with the child.

In a recent case of Harwood & Retziaff [2010] FMCAfam 1335 a mother opposed the paternal grandfather’s application for an order to spend time with his 8-year-old grandchild. The grandchild was the daughter of his son who passed away in a traffic accident before the child was born. The Federal Magistrate granted the paternal grandfather a graduated program of time with the child.

Hiroma and Anor & Hiroma and Anor [2011] FamCA 75 – 21/2/2011 is another recent case where Orders were made for the grandparent's rights to spend time with their grandchildren.