It is a scenario that Lisa Hamilton – a family law barrister with more than 11 years’ experience at Lachlan Macquarie Chambers – knows too well. “Acting for grandparents is some of the most emotionally rewarding work that a lawyer can do in this practice area”, Ms Hamilton told Lawyers Weekly. “Typically, the client is unselfish and incredibly child-focused. The challenging part is seeing how crestfallen they are at their own child’s failings, and their sadness at their loss of relationship with the other parent of the child who they may have loved like a daughter or son”.

The good news for grandparents in Australia is that the law does recognise the importance of their grandchildren spending time with them. “Section 65C (ba) of the Family Law Act 1975 provides that a grandparent of a subject child may make an application [to the Family Court of Australia] for a parenting order. Other than a parent, grandparents are the only kind of relative to be specifically described”, Ms Hamilton said. “In my experience, courts do pay special attention when such applications are made because typically one or both parents are unwilling, unable or lack the capacity to care for the subject child. In special circumstances, it is possible for grandparents to be granted sole parental responsibility of their grandchild, too”.

However, Ms Hamilton understands that litigation is not for everyone and provided other options to grandparents outside the courtroom: “Grandparents may formally or informally adopt a child or end up with effective custody of a child as a result of intervention by child protection services in the relevant state or territory”.

No choice but to intervene?

Grandparents often feel obliged to intervene and make an application for custody to the court to protect their grandchildren in circumstances where there are addictions, family violence or mental health concerns involved, Ms Hamilton said.

“A few years ago, I acted for some very down to earth grandparents whose grandson had ended up living with them on an informal basis as a result of both his parents’ addiction to the drug known as ‘ice’”, Ms Hamilton recalled.

“They did not have a lot of money and for whatever reason were not in receipt of a grant of Legal Aid. This meant that through no fault of their own they were working through their retirement savings just to keep their little grandson safe. The court made interim orders for the boy to continue to live with them on an interim basis. Eventually, the boy’s mother was able to show that she had done a lot of work in overcoming her addiction, including relapse prevention, and my clients agreed that the child could live with her. Unfortunately, their own son could not prove that such steps were taken by him. He was unable to secure unsupervised time as part of the final settlement”.

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Nevertheless, grandparents must be aware that they may “fight” for their grandchild and “lose” in court: “I acted for a mother against the paternal grandparents of a then six-year-old boy whose father had abandoned him and the mother in order to live with the father’s first cousin in Europe”, Ms Hamilton recalled. “The paternal grandparents sought a live with order but ended up spending one weekend a month with the boy, which my client could not agree to because she was still so emotionally distressed from the separation. I remember the Judge losing patience with my client and remarking that she should have been more generous with allowing the boy a connection with his paternal grandparents where he must already have suffered feelings of rejection as a result of his father’s actions”.

At what cost?

Cases involving grandparents – like all legal matters – often come with a hefty price tag with many grandparents forced to utilise their life savings to improve the circumstances of their grandchildren with prospects of success never guaranteed. “This happens quite a lot”, Ms Hamilton admitted. “One case that stands out was from about eight years ago where I acted for the paternal grandparents whose son had been accused of sexually abusing the children. They were lovely, genuine people who were completely focused on the welfare of the three children, although one might have thought their first instinct would be to side with their son. I tried to run the litigation in as cost-effective a manner as I could, but the issues were complex and it did require a number of court appearances, as well as them paying for their son to have supervised time with the children. Eventually, the mother’s allegations were not substantiated, and the orders provided for regular time with their son and they were usually available to spend time with the grandchildren during those times. The fees they paid were certainly not cheap though”.

Advice for grandparents

For grandparents considering their options, Ms Hamilton provided some useful advice: “Create a quiet space to take a detailed history of the parents’ relationship and take a clear-eyed view of the failings and strengths of each of the parents. Be mindful of any lack of objectivity on their own part when it comes to considering their child’s flaws and think about their grandchild’s life to that point and what he or she needs most in terms of relationships in the future. If it seems that there is an interim measure which would satisfy them that one or both parents had become safer for example drug-testing, psychiatric treatment, or counselling for drug or alcohol abuse, they should include this in their application for interim orders”.

Stefanie Costi is a law graduate at Fox & Staniland Lawyers.