When parents separate, it is not only a child’s relationship with their parents that is impacted. The relationship that a child has with other family members is also impacted, including grandparents.

What is commonly googled as ‘grandparent’s rights’ is not actually about the grandparent’s rights at all. It is in fact, about the child’s right to have a relationship with their grandparent. Section s.60CA of the Family Law Act 1975 (“the Act”) provides that Parenting Orders in relation to a child are to be made in the best interests of the child – NOT in the best interests of the parents and/or grandparents.

But what happens if separated parents are in agreement that their child should not spend time with their grandparent? Where parents have parental responsibility for a child, a Court exercising jurisdiction under the Act may make Parenting Orders which conflict with the parents’ decision. This is because s.61C(3) of the Act provides that the “parental responsibility” in s 61C(1) “has effect subject to any Order of a Court”.

On point is the recent case of Sarti and Anor v Sarti (No. 3) [2020] FamCAFC 319, where the Full Court of the Family Court of Australia considered an Appeal by the parents, against a decision that the paternal grandfather be able to spend time with his grandson, (aged 5 years). Those Orders provided that the child spend time with the grandfather once a fortnight for four hours at a time. To complicate matters, the grandfather had inoperable cancer and a shortened life expectancy.

The separated parents were united in their position that it was not in the child’s best interests to spend time with the grandfather.  The parents were “concerned about the effect of what they perceive is his proprietorial attitude towards their son and the effect on the conflict between the adults, has on them and may have on the child.”

The grandfather did not dispute that the relationship with the parents was difficult, but he saw it as the child’s right for him to be able to spend significant time with his grandfather. Despite Interim Orders having been made for the child to spend time with his grandparent, the parents did not comply with those Orders.

The Court considered that the child spending time with grandfather would increase stress on the paternal relationship and recognised there were risks in ordering time but decided “…..it is in the child’s best interests for him to resume his relationship with his grandfather.”

The case confirms the right of children to be able to spend time with their grandparents. However every case will very much depend on the facts. The views of the parents are important, but the Court must consider what is in the best interests of the child.

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