Do Grandparents have rights too?
Grandparents do not have an automatic right to see their grandchildren. However, the grandchildren have a right to continue to spend time with their grandparents with whom they are close. In short, if it’s in the best interests of the child that they continue to have a relationship with a grandparent with whom they already have a great relationship, then the Court will take a long hard look at that.
To succeed in the Family Court, the grandparents must satisfy the Court that they are significant adults in the lives of the grandchildren and that it would be beneficial to their grandchildren to spend time with them. The Court will consider (amongst other things) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from any grandparent. In many cases grandparents who make such an application to the Court come up against vigorous opposition from the parents of the children in question.
There are many reasons for such opposition but alcohol, abuse, drug addiction, family & domestic violence and poor relations between the grandparents and their own children are often at least partially to blame. If it can be shown that the grandparents have historically been involved in the life of the grandchildren, the Court will be inclined to allow the grandparents to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the grandchildren spend time with the grandparents.
But what about the increasingly more common situation, where a grandparent has to pack away the caravan, and care for a grandchild because neither of the child’s parents, is not able to do so? This includes situations such as the son/daughter dropping the kids off for the weekend, and returning 2 months later, or where the safety of the grandchild is at risk?
Firstly, the Children and Community Services Act 2004 (WA) is the law that applies in Western Australia when the Department of Child Protection and Family Support thinks that a child is not safe living with their family or that a child’s family needs extra support to make a child safe. The Department has the power to support families to look after their children, or to remove children from their parents if it seems necessary for their safety and welfare, or if they are at risk of harm. This is done through the Children’s Court of WA as a “Protection Order”.
Family law is different to protection and care law. The Family Court cannot make Orders if there is an unfinalised application for a Protection Order in the Children’s Court, where the child is in the care of the Department, unless it agrees, or the Orders come into operation when the child is not in the care of the Department. For a grandparent who has concerns for a grandchild’s safety you can talk to the police, report your concerns to the Department or get legal advice about applying to the Family Court for Parenting Orders.
If you hold fears for your grandchild’s immediate safety call the police so that your concerns can be investigated. To contact the police, call 131 444 or 000 for life threatening emergencies.
If you report your concerns to the Department it is possible that this might lead to the Department making a protection application in the Children’s Court. This is different to a Family Court application. We recommend grandparents get legal advice as an initial step before contacting the Department. A grandparent may be able to apply to the Family Court for Orders that the children live with them. To do this, they need Parenting Orders. Our lawyers are able to offer assistance and advice on obtaining such Orders.
If you’re not sure what your options are, don’t rely on Joe next door for advice make sure you see a lawyer who actually knows what they’re talking about. Incorrect steps early on often cause more problems in the long term so set up your case properly from the beginning.