GRANDPARENTS VS PARENTS VS CHILDREN- WHOSE RIGHTS MATTER?

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Remember the old story of King Solomon and his judgment on two women both claiming to be the true mother of a child? Well reimagine the story into a modern day courtroom setting where you have the parents of a young child on one side, and the grandparents of that child on the other, bitterly fighting for time with the child. Luckily in this day and age, no literal swords need to be drawn, and you can find trusty representation in us to help you navigate through the intricacies of the law.

Part VII of the Family Law Act 1975 (Cth) [“FLA”] governs how courts are to make decisions in relation to all children regardless of the status of their family.  One might ask, under the current legislation whose rights matter the most in our above situation? Some may think that grandparents ought to have the right to see their grandchildren, and be a part of their lives because they love them and wish to cherish them. Others may think that parents have the right to make any decision they see fit without the intervention of a court because their children live with them and they have some sort of natural right as parents. There are compelling arguments that can be run on both sides, however, the fundamental principle objective underlying part VII of the FLA is having the best interests of the child met. Ultimately, provided that it is in the child’s best interests, then it’s the child’s right to spend time and communicate with both their parents and other people significant to their care, welfare and development such as grandparents or other relatives.

Therefore, when it comes to the Court making parenting orders in relation to a child, the rights of parents and grandparents are all secondary against the paramount consideration of whether or not such an order would be in the best interests of the child. However, it is important to note that absent a Court Order to the contrary, parental responsibility vests solely in the parents, whereas grandparents do not have any responsibilities to the child under the FLA. Nevertheless, cases such as Bright & Bright v Bright & Mackley (1995) FLC 92-570 emphasise the importance of grandparents in a child’s life as “it is very important for a child to understand that he/she is part of a wider family, that he/she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family”.

The FLA will allow both parents and grandparents to apply for a parenting order in relation to a child. But just remember, at the end of the day, your prospects of success will depend on how focused your case is on the child’s best interests. Just like how King Solomon unearthed the true mother, it is crucial to put the child’s interests above your own.

If you need any assistance or advice on any parenting or family issues, please contact our team at Stephens & Tozer. We have our family law specialist and a dedicated team of friendly lawyers that will help you tackle any legal problems life may bring.


Alice Zhao is a soon to be lawyer undertaking her placement at Stephens & Tozer. She has had exposure to many different areas of practice during her placement. If you ever need any assistance or advice on any parenting or family issues, please contact our team at Stephens & Tozer.

14 December 2018

Category: All / Family Law