In this podcast Ashleigh John, Director discusses how grandparents can support their children, “the parents” when there is a separation.
Ashleigh: “Hi, I’m Ashleigh John. I’m a director in the Family Relationships Law Team at Mullane and Lindsay Solicitors and today I’m going to speaking to you about grandparents and family law.”
Lorraine: “How can grandparents support their children, “the parents” through a separation?”
Ashleigh: “Grandparents have a really important role following a separation. As you can acknowledge, the children are often going through quite a difficult time, for many people separation can be the hardest thing they go through in their life, so grandparents have a real role to provide emotional support to their children, so the parents in this case. Look it can be difficult sometimes because the grandparent might not support the parent’s decision in deciding to separate but it is important that they can set that aside from supporting the individual themselves. There’s also a financial support that grandparents often provide as you can appreciate, these are people who might not have been expecting to separate, they may have set their lives up in such a way that they’re reliant on having the other person there and to suddenly find themselves in a situation where they may not be able to meet their rent payments, they may not be able to afford the school fees. So, we do find in our practice that grandparents really do find an important role, in just allowing parents to stay afloat to take one of those pressures off them, as I said its such a difficult time.”
Lorraine: “And what entitlements do grandparents have to see their grandchildren when the parents have separated?”
Ashleigh: “Well, that’s an interesting one because it depends on what the circumstances are. So, in most cases you’ll find that grandparents will spend time with children during the time the children are with their own parents so if you find that the children are spending time with a father every second weekend then they might spend time with their paternal grandparents during that time as well. It’s different though, if the parent isn’t spending time with the child for any particular reason because then you’ll find grandparents that might have had a good relationship with these children over a long period of time are not seeing their grandchildren so that’s a situation where you might need to look at other steps of what grandparents can take to maintain that relationship with the grandchildren and then there are circumstances where parents might not want the grandparents involved in the children’s lives, so that’s a separate one again where the grandparents might need to give some consideration to whether or not they want to take steps formally through a court system to get orders or an agreement to spend time with the children but I think grandparents need to be aware that the court is there primarily to ensure that parents are maintaining that relationship with their children rather than focusing on the grandparents. So, when both parents are of the position that they don’t want the grand parents involved in the children’s lives, what you’ll often find is that the court won’t stand in the way of that and will actually allow that to occur which can be really disappointing and heartbreaking for some grandparents. There are therapeutic ways for grandparents to look to mend their relationships with their children, my recommendation is to look to those before rushing off to court to get some kind of an order to see their grandchildren.”
Lorraine: “What options are available to grandparents that don’t believe that parents are looking after their grandchildren well enough?”
Ashleigh: “Yes, and this does follow through to what I was saying earlier that sometimes the reason that grandparents want to see their grandchildren and parents don’t agree is that there might be issues with the parents themselves. Unfortunately, there is a real issue in the local area, the Hunter region, the mental health in parents, drug and alcohol abuse and so on which can cause issues and risks to children. So, grandparents have a number of options and they can look if they have serious concerns that the child is at risk of significant harm of reporting the issues to the Department of Communities and Justice, that’s the new name of the organisation that was formally known as DOCS or FACS, you just need to be careful with that because that could really cause a rift between a grandparent and a parent if that formal action is taken so I would say that grandparents need to think carefully about that sort of report but at the end of the day if a child is at risk of harm that needs to be the paramount consideration. There are other options available to grandparents, they might try to go to mediation with the parents, we call it family dispute resolution and that’s where they might try and get some time with the child, they might try to reach an agreement with the parent for this period of their lives perhaps the children should be with the grandparent rather than the parent while the parent can get their own assistance and if that doesn’t work there is an option for grandparents to commence proceedings in the Federal Circuit and Family Court of Australia. So, grandparents are one of the few classes of persons as we call them to commence proceedings and seek parenting orders in the Family Court. I guess something that I would like our listeners to be aware of in that, is that the benefits of proceedings down the family law route so through the Federal Circuit and Family Court as opposed to bringing in the Departments of Communities and Justice or finding yourselves in the Children’s Court which is the State jurisdiction, the Federal jurisdiction. Is within Family Law, families have a bit more control. So, Family Law is a private forum, there’s no state body that’s involved as a party, as opposed to the children’s court or the welfare jurisdiction where one party is the State of New South Wales on behalf of the children. That’s something I really think people need to think about, is that it can be very hard then to change those arrangements if circumstances change and they may be circumstances with the parents, the parents may have issues that point in time where they cant provide, the care and support that these children need and the grandparents are able to step in at that time, then the grandparents can step out again when the parents end up finding themselves able to provide that care. As opposed to a State order where the Department of Communities and Justice have to be involved if there’s going to be a change to that order.
Lorraine: “If a grandparent takes on a role of a carer for the child, what support financial and otherwise is available for grandparents who are looking after the children?”
Ashleigh: “Yes, I think this is a very important one because I think that grandparents who take on care of their grandchildren aren’t expecting this at this point in their life, I don’t think anyone expects to be in their 70s raising young children. So, the availability of support is really important. There are some great community organisations that support people who are in this circumstance, there is such organisations as Kinship Carers, there are some groups in the Department of Communities and Justice who will provide that support as well because you find this applies to both grandparents who take on care of their grandchild under a Family Law order or an informal arrangement so they might just agree with the parents that I’m going to keep the kids with me until you’re able to address your issues and we can talk again, so that’s what I would call an informal arrangement or grandparents who might have care of their children on a permanent basis as a result of the Department of Communities and Justice removing the children from their parents care and going on for the grandparents to become foster carers or adopted parents of these children. So, there’s people in different situations and its very important for grandparents to learn from the experience of others and at the support of others, there’s also financial support available which is different depending on what kind of circumstances led to the child being in their care of the grandparent so there’s the availability of child support, that’s where parents will pay money to the person who is the primary carer of their child and that’s monitored and run by the child support agency in most situations. Where there’s a family law order then that’s much easier to do, where its an informal arrangement, that’s where its difficult for the agency to monitor that. Where children are in the care of grandparents pursuant to an order of the Children’s Court, so through the welfare jurisdiction there’s other government subsidies and government assistance that can be provided through Centrelink and the like.”
Lorraine: “So, what happens when grandparents have been taking care of the grandchildren but now the parents want them back?”
Ashleigh: “This is a situation where all grandparents want to reach, where their children so the parents actually identify and issue what stood in the way of them caring for their children and able to address that issue and get back in the position where they can be a parent to their children. So, a couple of options are available, so if its pursuant to a family law order then those orders can be varied by agreement or by further order of the court so it may be the case where the parents and the grandparents have an agreement where the parents will take back the responsibility of the child but you find that the grandparent will maintain some involvement in the child’s life and I think that’s important for the grandparent and the child for that to happen. It’s a little more difficult in the welfare jurisdiction because the involvement of the state organisation, Department of Communities and Justice. So, it can be harder to go back on that order, you’ll need the agreement of the Minister for that order to then be varied. So, its for that reason that I would say to people to think carefully about how you take on care of children whether you involve the State, through the Children’s Court and Department of Communities and Justice or whether it’s something that can be agreed upon or taken through the Family Law Court and keeping that as two private individuals reaching that agreement or having that order imposed as opposed to involving the State but it is definitely the way that every family would like it to end up because its obviously in interest that the child have their parents in their life if they can provide the proper care and for grandparents to be able to go back to the position of grandparents of being able to give them lemonade and red frogs and send them home to their parents at the end of the day.”