Separation Involving Children

As a grandparent, do I have a right to see my grandchildren under family law?

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Grandparents are often an important part of a child’s life. Grandparents can be involved in lots of different ways - perhaps it’s a regular babysitting role, maybe its breaking the bed time rules or serving up dessert before dinner. Whatever role it may be, grandparents often want to be a part of a child’s life.

 

Grandparents can sometimes encounter issues when it comes to seeing their grandchildren. Whilst there is no automatic right for a grandparent to see their grandchild, the Family Law Act 1975 (Cth) allows for a grandparent of the child or any other person concerned with the care, welfare or development of the child to apply to the court for a parenting order.

 

There are many situations in which a grandparent may want to apply for a parenting order to see a grandchild and some common situations are:

1.     The parents have separated and neither parent is facilitating time with the grandparents.

2.     The parents are still together but refuse to let the grandparents spend time with the child.

3.     One of the parents may have passed away and the surviving parent isn’t allowing the grandparents to see the child.

4.     The grandparents may want a child to live with them, for reasons such as the parents aren’t involved in the child’s life or there is a significant safety concern for the child in the parent’s care.

 

It’s important to know that there is typically a requirement to try family dispute resolution before proceeding to court (some exceptions may apply). This means the grandparents and parents could try mediation with a third-party mediator to try and resolve the issues and come to an agreement first.

 

If separated parents already have court proceedings on foot, then grandparents may need to be joined to these court proceedings as a third-party. Alternatively, grandparents may need to be the ones to start the court proceedings. There’s several different orders a grandparent could seek such as:

1.     to spend time the child;

2.     to communicate with the child e.g over telephone or skype;

3.     that the child live with the grandparents and that the grandparents have parental responsibility for the child.

 

In any parenting matter a court will look at what is in the best interests of the child. That is the paramount consideration of the court when making a parenting order. The amount of time or communication that a child has with a grandparent will be based on what is best for the child.

 

There are many factors that a court will look at when determining what is in a child’s best interests. Some additional considerations are:

1.     the views of the child (usually depending on the maturity and level of understanding);

2.     the nature of the child’s relationship with parents and grandparents;

3.     the likely effect of any changes in the child’s circumstances including separation from parents, any other child or other person such as grandparents who the child has been living with;

4.     the capacity of parents and grandparents to cater for the needs of the child including emotional and intellectual needs;

5.     any family violence.

  

If a dispute arises solely between the parents of the child, and it doesn’t involve the grandparents then proceedings will need to be commenced by one of the child’s parents. A grandparent cannot start proceedings on behalf of a parent who is capable of doing this for themselves.

 

At Coutts, we understand that this may be a difficult time for you and that every situation is different. We can meet with you to take you through the process and advise you on your individual circumstances.

 

For further information contact:

Rebecca Watts
Lawyer
rebecca@couttslegal.com.au
02 4607 2148

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Separation & Divorce: The Rules

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There is a general misconception surrounding separation and whether it can only occur if parties are living in completely different residences. This is in fact not the case, and separation does include separation under the same roof, as well as living in completely separate residences.

For the Court to be satisfied that the parties have been separated under the same roof, the party bringing the application needs to prove to the Court the following:

  • That they have been living in separate bedrooms;

  • The parties’ belongings have been separated;

  • Each party is attending to their own cooking, cleaning and washing;

  • That the parties have not invited family or friends to socialise in their home as a couple;

  • That the parties have not attended a social gathering/function together as a couple; and

  • That a third party such as a family member or friend was aware that the parties were separated but living under the same roof.

When making an Application for Divorce, the party applying needs to prove to the Court that the parties have been separated for a period of 12 months or more.

If the parties have been separated under the same roof for a part of that 12 months or for the full 12 months, when applying for Divorce, they will need to provide the Court with extra information in addition to the Application for Divorce, including:

  • The dates that the parties were living separately under the same roof;

  • An Affidavit by the person applying for the Divorce detailing the circumstances and how they were living separately under the same roof; and

  • A corroborating Affidavit of a third party such as a family member or friend acknowledging that they were aware that the parties were separated but living under the same roof and the details of how they were aware of those circumstances.

Once these documents have been filed with the Court, the parties will receive a ‘Divorce Hearing date’ where the Application is heard/reviewed before a Registrar of the Court. If all of the requirements for the Application for Divorce have been satisfied, the Registrar will make an Order for the parties to officially be divorced one month and one day after the Divorce Hearing date.

If you are separated and need assistance in preparing an Application for Divorce and/or Affidavits for separation under the same roof, contact the Family Law Team at Coutts who can provide you with all of the information required.

 

For further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

Step Parent Rights After A Separation With The Biological Parent

What are your rights as a Step-Parent when you have separated from the biological parent?

Section 4 of the Family Law Act 1975 (Commonwealth) defines a Step-Parent as:

(a)    A person who is not a parent of the child;

(b)    Is, or has been, married to or a de facto partner of, a parent of the child; and

(c)     Treats, or at any time while married to, or a de facto partner of, the parent, treated, the child as a member of the family formed with the parent.

 

As a Step-Parent, you do not have an automatic right to custody or spend-time arrangements if you have separated from the child’s biological parent. You also do not have an automatic right of equal shared parental responsibility of the child. This means that you are unable to:

a)       Authorise Medical Care/Make decisions about the child’s health care;

b)      Make decisions about the child’s education or sign school forms;

c)       Make decisions about the child’s religion;

d)      Apply for passports and/or obtain birth certificates.

You can, however, apply to have Parenting Orders put in place, that allows you to spend time and communicate with the child.

 

The process to have Parenting Orders put in place to allow you to spend time and communicate with the child is:

a)       First attempting to negotiate with the biological parent. If your negotiations are successful, an agreement can be made into ‘Consent Orders’. Consent Orders are a binding Court Order that allows you to spend time and communicate with the child. This means that you do not have to make an application to start Court proceedings;

b)      If negotiations are unsuccessful, you can attempt Mediation, where you will have an independent third-party present that will try and assist the parties to resolve their issues and come to an agreement. If an agreement is reached at Mediation, again, the agreement can be made into ‘Consent Orders’.

c)       If Mediation is unsuccessful, you will need to make an application to start court proceedings. You are able to do this as ‘other people significant to the care, welfare and development of the child’. This is when the Family Court will decide on whether you can spend time and communicate with the child, and have parental responsibility allowing you to make decisions with the biological parent in relation to the child. The Court will determine this based on whether it is in the best interests of the child for that to occur.

 

The chances of the Court making the Parenting Orders that you are seeking as a Step-Parent are higher with the length of the de-facto/marital relationship and whether you have been involved in the child’s life since separation.

 

If you are seeking advice in relation to your rights as a Step-Parent after separation, please contact Coutts and speak to our Family Law Team.

 

For further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

5 Do’s and Dont’s for Separation involving children.

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Separation is a very difficult thing to go through, and is made even harder when there are children involved. It is important to remember that regardless of the circumstances in which separation has occurred, your kids love both you and your former partner. There are things that you should and shouldn’t do during the time of transition.

While this isn’t based on what the law says, we see so many families going through separation. Everyone is human, and we all make mistakes, but there are practical ways that you can approach this situation to support your kids as much as possible.

Things you should do:

Things you should do

Things you shouldn’t do:

Things you shouldn't do

By remembering that your children love both parents very much, and keeping them as your focus through the separation process, you can make decisions that are good for them, as well as good for you, helping you move on to the next exciting stage of your life.

If you have any legal questions about separation and children, please click here to contact us.