Do I Have a Legal Right to See My Grandkids?

Messner v Tosto [2018] FCCA 827

In this case, the children’s parents were not divorced. The maternal grandparents sought to spend time with their grandchildren, but the parents opposed this. There are four children of the marriage. The grandparents were involved in caring for the children after moving to Australia in 2006, but there were many conflicts between the parents and grandparents over issues of childrearing. From 2014 the grandparents ceased seeing the children. The eldest child, after a falling out with her parents, moved in with the grandparents.

In 2015, the grandparents applied for a parenting order, seeking a legal right to spend time with their grandchildren. In coming to the conclusion that the grandparent’s proposed parenting orders should not be allowed, the court considered that:

• Since both parents were so “vehemently opposed” to the children spending time with their grandparents, such an order would likely have an adverse affect on the children’s relationship with their parents.
• While there is no evidence of family violence, there is an “identifiable risk of the children being exposed to the harm of their parents struggling with their exposure to and time with the grandparents.” It is against the best interests of the children to be exposed to the pressures the parents would face if the children were to spend time with their grandparents.
• While the views expressed by the children can be influential in a case on parenting orders, the court considers that the young age of the children means that their “wishes would not be determinative.”
• The children have a “secure and loving” relationship with their parents, but no real relationship with their grandparents.
• The parents’ concern about the grandparents undermining them to the children has placed a great deal of stress on the parents which in turn would have a negative impact on the children.
• There are practical difficulties in facilitating the grandparents spending time with the children. For example, the grandmother expected that the parents would make the travel arrangements, and the children do not understand the native language spoken by the grandparents.

On this basis, the court concluded that the grandparents should not have the right to spend time with their grandchildren.

Daniels v Daniels [2014] FCCA 3133

In this case, the paternal grandparents of the child applied for an order to spend time with the child. The child’s parents had a history of illicit drug use and at one stage, the child was admitted to hospital for ingestion of benzodiazepines. After this event, the mother stopped the child from spending time with the grandparents. The child and grandparents had an established relationship, but the mother opposed the grandparent’s proposed orders.

In concluding that the grandparents should be able to spend time with the child, the court noted that:

• The child’s relationship with his grandparents is “vastly important” as it “bring[s] great benefit and stability and bringing aspects of care, life and stability in life that may not be available or available to the same extent in his relationship with his mother.”
• The grandparents took opportunities to participating in decision-making, spending time with and communicating with the child.
• The grandparents provided financial support to the child since his birth without any legal obligation to do so.
• Even though spending time with his grandparents will mean that less time is spent with his mother, the mother agrees that the child will “receive benefit from the caring, loving relationship” of his grandparents.
• While there are some practical difficulties in facilitating the child spending time with his grandparents as the mother does not drive, the overall positive impact on the child of spending time with his grandparents outweighs any impracticalities.
• The grandparents and the mother each have the skills to meet the child’s needs.

On this basis, the court ordered that the child continues to live with his mother, but the grandparents are able to spend time with the child according to periods set by the court.