Establishing the Best Interests of a Child
August 15, 2014 /
In 2006, significant changes were made to the Family Law Act 1975 (“the Act”) relating to the arrangements for children. In doing so, specific provisions were included in the Act to promote the relationship between grandchildren and grandparents. These provisions include (but are not limited to):-
• Specifically allowing grandparents to apply for parenting orders for their grandchildren. 
• In all matters concerning the arrangements for children, a requirement for the Court to consider (amongst all other matters) the nature of the relationship of the child with its grandparents when determining the child’s best interest.  
Fortunately, most families are able to agree the arrangements between the grandchildren and the grandparents without requiring the intervention of the Court, however, in scenarios where this is not possible the Court will determine the same. This occurred in the case of Penn & Haughton [2013] FCCA 1941 (“the Penn case”).
The two parties in the Penn case were the parents (whose relationship was intact) of a 5 and 4 year old and the paternal grandmother. As a result of the parents refusing to allow the paternal grandmother to spend time with the children, the paternal grandmother filed an application at the Court seeking orders for the children to spend time with her.  At the time of the court hearing the application, it had been approximately 3 years since the children spent any time with the paternal grandmother. The parents opposed the paternal grandmother’s application and sought an order that the same be dismissed early in the proceedings (known as summarily dismissal).  
In determining the matter, the court weighed up the principles and objects of the Act and balanced the same with general principal that children should have a relationship with their grandparents in the context of the family dynamics.  In doing so, the court was influenced by the Act being premised on parents sharing the duties and responsibilities for the care and development of their children and that it encourages parents to reach agreement about those matters together.  The Court noted that as the parents had a united strong view on the parenting of their children (i.e. that they should not spend time with the paternal grandmother) it should exercise caution before interfering with that exercise of parental responsibility. 
The Court found that parents should be allowed to parent their children in accordance with the objects of the Act unless it is otherwise established that such parenting was adverse to the child’s best interest.  With that approach, and on the facts of this case, the Court found that the parents’ decision for the grandchildren not to spend time with the paternal grandmother was not adverse to the children’s best interests. As such, the Court dismissed the paternal grandmother’s application. In coming to such decision, the Court was influenced by the children not having a relationship with the grandmother for some 3 years and that the prospect of litigation on this issue runs a risk of frustrating the relationship between the parents and the paternal grandmother further with such consequences being adverse to the children’s well-being.
The decision of each case will always turn on its own facts. As such, this case should not be a deterrent for grandparents seeking to spend time with their children. Obtaining legal advice at the earliest opportunity will inform you of all of the options available and how the law may apply to your family situation.