GETTING YOUR CASE RIGHT BEFORE MAKING AN APPLICATION TO COURT
A Brisbane Judge recently dismissed a grandmother’s application to spend time with her grandchildren, aged 4 and 5 years whom she had not seen for 3 ½ years. A Court can dismiss the application without testing the evidence where it is satisfied that the applicant has no reasonable prospects of succeeding with their case.
In this case the paternal grandmother applied to the Court for orders permitting her to spend time with her grandchildren and to introduce them to their 16 year old half-brother who lived with her. The children’s mother and the father were jointly and vehemently opposed to the children having a relationship with the grandmother.
The Judge noted that although the Family Law Act gives grandparents the right to apply for orders to spend time with their grandchildren and the law generally supports the proposition that children have a right to a relationship with their grandparents and extended family. Ultimately the Judge had to decide whether introducing the grandmother to the children’s lives, against the wishes of the parents, would be in the children’s best interest.
In this case the judge decided that making an order permitting the grandmother to spend time and communicate with the children would not be in their best interest as the potential benefit to them of developing a relationship with their grandmother and extended family and of having a fuller understanding of their identity was outweighed by the absence of an established relationship between the children and the grandmother and the high likelihood of ongoing conflict between the adults in the face of the parents joint, vehement opposition.
This case shows that the Court will be extremely reluctant to undermine and interfere with parents exercising their parental responsibility in an appropriate and child focused way. Grandparents and other members of a child’s extended family who come to the Court seeking orders to spend time with children will have difficulty in obtaining orders where there is no established relationship and the child’s parents are jointly opposed.
Grandparents and other relatives who are able to establish that they are significant to a child’s care, welfare and development are able to make an application for a parenting order to allow them to spend time and communicate with a child. Every case is different and this article should be taken as general advice only.
In all matters regarding children it is important to have legal representatives who acknowledge that it is in the children’s best interests to resolve disputes without causing further damage to the relationships between the adults and, wherever possible, to resolve the matters outside of Court. Where matters do proceed to Court, it important to have an experienced advocate to advise and advocate for you, so as far as possible, you can achieve the outcome you desire.
If you are a grandparent who would like to discuss your right to spend time with your grandchildren or are a parent who would like to discuss your concerns about your children spending time with their grandparents or other relatives, please contact our office to make an appointment to see our Family Law Specialist on 07 3209 7744.
Penn & Haughton & Anor [2013] FCCA 1941 (1 November 2013).
