Chisholm, Richard --- "Grandparents and Children's Cases in the Family Court" [2002] ALRCRefJl 24; (2002) 81 Australian Law Reform Commission Reform Journal 53

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Reform Issue 81 Spring 2002

This article appeared on pages 53 – 57 & 90 of the original journal.

Grandparents & children’s cases in the Family Court

By Richard Chisholm*

What rights do grandparents have in relation to their grandchildren? Can they apply to the Family Court? How does the law resolve disputes about children involving grandparents? In this article, I will attempt to answer such questions. I will not be comprehensive, but I hope to explain the position simply, dealing with the basics.

The best place to start is with the law on ‘parental responsibilities’. Under the Family Law Act 1975 (Cth) (the Family Law Act), parents are given initial powers and responsibilities relating to their children. These were formerly called rights of custody and guardianship, and are now – since 1996 – called ‘parental responsibilities’. As a result, parents have the legal authority to make such decisions as which school a child should attend, decisions about health and medical matters, and other decisions about their children’s lives. Parents also have a duty to provide financial support for their children, primarily, these days, under the child support legislation. Other people, including grandparents, do not have these responsibilities: the law does not give them powers to make decisions about their grandchildren, or obligations to them. Of course in practice they will often be very involved in helping their grandchildren in many ways, including financial, with the consent (often enthusiastic!) of the parents; but the law does not entitle them to exercise such powers, or require them to support their grandchildren financially.

Parental responsibilities and child support obligations in our law attach to what I might call ‘pure’ parenthood: essentially people who are the biological parents, regardless of their marital status, whether they have lived with the child, or other such circumstances. Take, for example, a situation where a single woman becomes pregnant as a result of a brief encounter but, by the time of the child’s birth, has been living with another man who acts in every way as if he were the father. Unless he adopts the child, as a matter of law, he has no obligation to provide financial support,¹ or any parental responsibilities. The biological father retains both: he can be made to pay child support and (in law) he and the mother are the ones with parental responsibility.

The law supports parental responsibilities in various ways. For example, parents have powers to discipline their children. Thus, when a parent reasonably confines a child to a room for a short period as a punishment, the parent commits no legal wrong. If the parent did the same thing to another person, the other person could sue for false imprisonment. Again, parents may authorise a surgeon to operate on their child: the operation might have been illegal if the surgeon did not have the parents’ consent. And if a person unjustifiably takes a child away from a parent, the law will normally support the parent, for example, by having police bring the child back or by charging the abductor with an offence.

In all this, parents are equal: the old law, that the father had more rights than the mother, has long since gone. The Act now says that “each of the parents of a child who is not 18 has parental responsibility for the child”.² Nobody else has this parental responsibility. Thus (except as a result of court orders, as we shall see) grandparents as such do not have special powers over their grandchildren, or responsibility for them.

I say ‘as such’ because it is possible for parents to delegate some of their responsibilities. So, if a grandparent is looking after a young grandchild at the request of a parent, the grandparent would be entitled to discipline the child, just as the parent would. But this is not because of the grandparent relationship. If a parent arranged for the child to be cared for by friends for a few days while the parent went on holiday, the friends would be in a similar position. Similarly, where a parent agrees, a step-parent would legally be able to do some of the things the parent could do.

The law of course sets limits to parental powers and responsibilities. Parents who administer punishment that goes beyond what the law permits may commit a crime. And parents cannot simply choose not to send their children to school: school is compulsory, in the sense that the law requires the parents to send their children to school.

The automatic allocation of parental responsibilities to each parent is the initial position, or the default position. It can be changed by court order. The sort of proceedings that used to be called ‘custody and access’ cases are now called ‘parenting cases’ and can be regarded as cases in which someone wants to change the default position.

Who can apply for a parenting order?

Grandparents can apply under the Family Law Act for what are now known as parenting orders: orders that the child should live with them, or have contact with them, or that they should have some parental responsibilities. The relevant section, s 65C, had provided that applications could be made by the child, a parent, or any person concerned with the welfare of the child, and grandparents would of course normally fall within those words. Recently, to remove any possible doubt, the section was amended so it specifically says that grandparents can apply.

This is an important feature of our law. In the law of some countries there are restrictions on the extent to which people other than parents can apply to the court. Sometimes they have to make a separate application to get permission (‘leave’) to do so. Those laws may be regarded, perhaps, as giving special weight to parents. It is my impression that the more open-ended approach of Australian law has proved satisfactory: I have not heard of any suggestion that it should be changed.

What orders can the Court make?

Orders are expressed in a new language as a result of the Family Law Reform Amendment Act 1995 (Cth). The Court can make orders relating to residence, contact or specific issues. All those issues together as a bundle are called ‘parenting orders’. That language replaces the earlier language of ‘custody’ and ‘access’.

A residence order just means an order about the question of with whom the child should live; it has nothing to do with decision-making power. A contact order is about with whom the child should have contact. The word contact is not defined, but is much the same as access used to be. It would include face to face contact, and also things like sending Christmas cards, photographs, telephone contact or other communication between the grandparent and the grandchild.

What are specific issues orders? They are essentially about whether some of the parental responsibilities given to the parents should be re-distributed. They may be in more or less general terms. A general order might be, for example, that one parent has sole responsibility for making decisions about the child’s long term interests. Or it may be much more specific, for example, that a child should attend a particular school. One way and another, the Court has a very wide and flexible power. It can make orders about such things as where the child is going to live, whether the child sees somebody on Sunday afternoon, or whether somebody can ring the child, whether the child should be encouraged to ring someone up, whether letters should be passed on, or what the child’s name should be.

What happens in Court?

In practice, the proceedings are in some ways similar to other court procedures: the parties present their cases, the court receives and acts on evidence and argument, and a judgment is delivered. However, there are significant differences from ordinary litigation: in Family Court proceedings, the children are sometimes separately represented, and there are exceptions to the ordinary rules of evidence and procedure, notably the use of independent expert reports from counsellors attached to the Court, or external experts such as child psychiatrists.

In deciding what orders to make, the Court must treat the child’s best interests (formerly ‘welfare’) as the paramount consideration. The Act sets out a list of matters to be taken into account in deciding what orders are most likely to promote the children’s best interests.

The provisions about children’s matters have been modified as a result of the Family Law Reform Act 1995 (Cth), which came into force in June 1996 and amended the part of the Family Law Act relating to children’s matters. It changed the terminology and concepts, but did not make major changes in the law or the task of the court.³ One section, s 60B, states the principles on which the Act is based. One of these is that “children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development”. Clearly, this will often apply to grandparents.

Section 68F says that, in deciding what is best for the child, the Court should have regard to a list of factors. Some items on the list are deliberately worded to include people such as grandparents who have been involved in children’s lives. They include:⁴

• the nature of the relationship of the child with each of the child’s parents and with other persons;

• the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a parent or any other child, or other person, with whom he or she has been living; and

• the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs.

The courts have (at least in recent times) taken into account the role of important family members, and the words I have referred to give additional emphasis to this. Many of these provisions are relevant to grandparents. Suppose a grandparent says “I’ve been greatly involved with this child, I’ve been looking after the child on Sundays and doing a lot of babysitting or helping out the parents in various ways. The child has a relationship with me. I ask the Court to make an order that will preserve and protect that relationship rather than an order that will destroy it.” These are matters that fall within a number of the guidelines in s 68F, and the Court will certainly attend to arguments along these lines.

Involvement of grandparents in litigation

In my experience grandparents are often involved in litigation by providing support to their children, and by being witnesses: providing evidence in support of the application by their son or daughter. The grandparent might provide an affidavit which will be filed as part of the case of the son or daughter, and the grandparent will be available for cross-examination. The son or daughter will be the one running the case, even though it might be part of that case that the child should have regular contact with the grandparent. It is fairly rare that in practice grandparents apply to the court as parties.

The significance of being a party, rather than merely a witness, is essentially that as a party you can apply for particular orders, and you are entitled to call evidence, and cross-examine other parties’ witnesses. Any party may apply at the end of a case for costs, that is, an order that one or more of the other parties should meet some or all of their legal costs. The court is most likely to make a costs order against a party who is unsuccessful, especially if the party has wasted time or otherwise behaved poorly. Since costs can be for large amounts it is wise to think carefully and get legal advice before becoming a party to litigation.

In most cases it is obvious that the children will benefit from spending time with grandparents. It is common, for example, that a parent who is seeking contact will say that one of the benefits of contact by the parent is that it will allow the children to maintain their contact with the grandparents as well. To make this argument there is no need for the grandparent to be a separate party in the proceedings.

Normally, it is appropriate for the grandparent to become a party only where the grandparent is opposing everybody else. Suppose, for example, that there is a contest between a mother and a father. A grandparent who merely wishes to support his or her child will normally do so by being a witness. If, however, the grandparent wanted the grandchild to live with the grandparent rather than with either of the parents, it might be appropriate for the grandparent to make such an application, and thus become a party.

The decided cases

It is beyond the scope of this paper to engage in a detailed analysis of case law. In children’s cases, everything depends on the particular facts and it is dangerous to assume that one case will be decided like another because it has some obvious similarities. On the other hand, reading the cases does provide an insight into the approach courts take and the matters they regard as significant.

The older cases tended to speak of everyone who was not a parent of the child as a ‘stranger’ – they used such language, for example, to describe foster parents and grandparents. I think these days that is seen as an outdated view. The blanket term ‘stranger’ fails to distinguish between someone from outside the child’s life and someone who might be a close relative, and might have had a major role in caring for the child. Children who have lived apart from their parents, for example with a grandparent, may feel closer to those people (who are legally ‘strangers’) than to their parents. It is true in law that until the court makes an order the parent retains parental responsibilities; but to refer to the grandparent or other person caring for the child as a ‘stranger’ gives the wrong impression.

One finds grandparents involved as parties in different sorts of cases, but I think the most common situation is this. A young single mother has found it difficult to cope with her child, perhaps because of such problems as illness, poverty, or drug and alcohol problems. She agrees for her mother, the child’s grandmother, to look after the child until she can overcome her problems. After a while she considers herself ready to take over the child’s care again, and she wants the child back. But the grandmother fears that the mother’s problems have not been resolved, and the child should stay with her for a longer period. So there is a dispute between the mother and the grandmother. (The father may or may not have been involved in the child’s life, and may or may not want to participate in the litigation). This would be a contest about residence. Another possibility is that the grandmother might agree to the mother having the child back, but only if there is regular contact between the child and the grandmother. If the mother does not agree to this, the grandmother could make an application for contact with her grandchild.

Many other situations can arise, however, and they are often complex. In one appeal, for example, the child was born to an Aboriginal father and a non-Aboriginal mother. The mother died. The parties had lived with her parents, the child’s maternal grandparents, and other members of the extended family. The trial judge found that the father was ‘wholly unsuited as a custodian’ and that the child’s warmest and most loving relationship was with the maternal grandparents and their extended family. He awarded custody to them, rather than to the father or the paternal grandparents, and this decision was upheld on appeal.⁵

How does the Court handle such cases? The reported cases these days stress that everything depends on the best interests of the particular child, and that there is no legal presumption in favour of a parent. At the same time, the cases both before⁶ and after the 1995 amending Act indicate that the court will tend to assume that it is normally in the child’s interests to be with one or both parents.⁷ In one recent case, the Full Court said that this statement, from a decision prior to the 1995 Act, was still good law:⁸

“[T]he fact of parenthood is to be regarded as an important and significant factor...”

The law in practice

Grandparents can of course make a large contribution to the lives of their grandchildren, and enjoy doing so. Grandparents can play all sorts of important roles, providing help ranging from babysitting, to financial help, to wise advice. In many cases, this flows naturally from arrangements voluntarily made between the grandparents and the parents. The law mainly comes in, of course, where there are disputes. It provides a way of having someone else make the decision, after giving all the parties a chance to have their say. The fundamental principle of the child’s best interests being paramount means that ultimately the court’s task is to make the orders that are most likely to benefit the child, not the orders that might be best for anyone else, whether parents or grandparents.

Although in many cases grandparents and members of the extended families play constructive roles, grandparents are not immune from the sorts of pressures that make some people bitter and hostile when families break up.⁹ In my experience in the Family Court, when there are difficulties and disputes about the grandchildren, feelings of hostility, anger and resentment can easily spill over to grandparents and other family members. They may be so affected that they can sometimes act in ways that widen rifts, rather than playing a conciliatory role. Thus, there is potential for grandparents and other members of family to be both constructively and destructively involved, and the law has to cope with those possibilities.

This leads me to my last point. Family law provides mechanisms to try to help people resolve these disputes among themselves, even after proceedings have been commenced. I do not have space to discuss the details, but the procedures of the Family Court are intended to provide many opportunities and encouragement for people to work things out for themselves, sometimes with the help of their lawyers, or of counsellors attached to the Court or working in the community. Family lawyers – even judges! – know that while the law must be there to make a decision if it is really necessary, it is usually best if the family members can manage to do so themselves.

* Richard Chisholm is a judge of the Family Court of Australia.

Endnotes

1. I will not complicate things by referring to exceptions, such as, the fact that in some circumstances step-parents can be required to provide financial assistance to a child.

2. Family Law Act 1975 (Cth), s 61C.

3. The leading case is probably B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755. There is a considerable literature on the subject, including my own article, ‘Assessing the impact of the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 177.

4. S 68F(1)(b), (c) and (e).

5. Y and X (Unreported, Family Court of Australia, 2 February 1996) (I have omitted some technical aspects in the brief summary I have given).

6. See eg Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; Re Hodak; Newman; Hodak [1993] FamCA 83; (1993) 17 Fam LR 1; FLC 92-421; Rice v Miller [1993] FamCA 87; (1993) FLC 92-415.

7. See eg Davies v French [2001] FamCA 382 (Unreported) upholding a decision in favour of a mother where the trial judge had found that in a number of ways the paternal grandmother had greater capacity to provide for the child’s needs, but overall found that the difference in the level of care provided by the paternal grandmother in comparison to the mother was unlikely to be sufficient to outweigh the advantages of the child being brought up by a willing and reasonably capable natural parent.

8. Davies v French [2001] FamCA 382 (Unreported), quoting Rice v Miller [1993] FamCA 87; (1993) FLC 92-415 at 80,240.

9. Some unreported cases illustrate such problems: mother and maternal grandmother persist in what were found to be false claims that the father had abused the child (Unreported, Full Court of the Family Court of Australia, EA 101/1998, 12 August 1999); maternal grandmother wanted contact so she could give lessons to the grandchild, who had attention deficit hyperactivity disorder – held, that there was no basis for transferring that portion of parental responsibility from the mother to the grandmother (Unreported, Family Court of Australia, SA 18/1998, 26 August 1998).