A grandparent of a child can make an application for parenting orders. Any Order made by the Court arising from an application made by a parent, a grandparent, the child or a person concerned with the care, welfare and development of a child must be in the best interests of the child. This is the paramount consideration for the Court.
When determining what type of order is in the best interests of the child, the Court must consider the primary and additional considerations.
The primary considerations are:
- The benefit to the child of having a meaningful relationship with both of the child’s parents (i.e. their mother and father); and
- The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence (i.e. where the child has been sexually abused by one parent or where the child has witnessed or been the subject of family violence).
When the Court is applying the primary considerations, the Court must give more weight to the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence, than to the benefit of the child of having a meaningful relationship with both of the child’s parents. Parents do not have an automatic right to spend time with their children and protecting the child from harm is the priority for the Court.
The purpose of this section of the Act is to ensure firstly, that children have the right to have a relationship with each of their parents after their parents separate and secondly, that children are able to be safe from abuse and violence.
In circumstances where the Court balances the primary considerations and finds that the child is at risk of harm in the care of one of the parents, then the Court may make orders that do not provide for the child to spend time with that parent or that the child spend time on a supervised basis or in a controlled setting.
There are a number of additional considerations for the Court including the nature of the child’s relationship with any other person, including any grandparent and the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any other person, including a grandparent, with whom he or she has been living, the capacity of any other person including a grandparent. The Court must consider these factors when making an order that is in the best interests of the child.
Applications made by grandparents often arise where one of the child’s parents are deceased or unable to care for the child.
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