IS MY RELATIONSHIP DE FACTO?
A de facto relationship is a relationship of more than two years. Although Stating that the relationship was over 2 years may not be enough. The relationship must have had a genuine domestic basis.
The court will decide if there has been a genuine domestic basis by considering the following evidence:
(a) the duration of the relationship
(b) the nature and extent of common residences
(c) presence of a sexual relationship
(d) the degree of financial dependence or interdependence, any arrangements for financial support
(f) the degree of mutual commitment to a shared life
(i) the reputation and public aspects of the relationship
The court will decide whether to make a declaration of a de facto relationship on a case-by-case basis.
Author: Rebecca Schuetze Law Clerk At Aspire Family Law
A family came to us for assistance with a family law matter that focused on an application made by a grandfather who requested to spend time with his grandchildren. In this matter the parents asked for the matter to be dismissed as they did not wish for him to have contact with the grandchildren due to the breakdown of the family relationship and other extenuating circumstances.
Here the question arose, what rights do grandparents have in making orders to the court to spend time with their grandchildren.
Grandparents can play a significant role in a child’s life; however, in some instances, they may not be able to see their grandchildren due to irreconcilable differences between family members for example.
The Family Law Act 1975 (Cth) does not specifically refer to grandparents’ rights to see or to care for their grandchildren. The child’s rights however, become the focus here. The act recognises that the child has the right to see and spend time with extended family members and important people in their lives which includes grandparents. The Act states:
“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.”
Grandparents do not have an automatic right to have a relationship with a grandchild. However, any person who ‘has an ongoing relationship with the child, or other person who can show that they are concerned with the welfare, development and care of the child’ may apply to the court for parenting orders to communicate with or spend time with the child. Grandparents are mentioned in the legislation as examples specially people who may be concerned for the welfare, development and care of the children.
A Parenting Order can be an order that you can spend time with or communicate with the child. It would then be for the Court to decide what will happen, based on what is in the child’s best interests.
The Best Interests of the Child
The Family Law Act 1975 is based on the best interests of the child. The child has the right to benefit from a relationship with their grandparents so long as it is in their best interests.
If a grandparent applies for a court order to have access to the child, the Court will consider primarily
- The benefit for the child having a meaningful relationship with the person.
- If there is a need to protect the child from harm.
- The child’s views considering their age, maturity and understanding of the situation
- Practical issues involved with contact and communication
Grandparents may wish to apply for a parenting order in relation to a child under section 65C of the Family Law Act 1975, grandparents are included among the people who may apply for a parenting order. A parenting order deals with the issues including:
- Where the child lives
- Who the child spends time with
- The allocation of parental responsibility
- How the child is to communicate with other significant people in their lives
- Any other aspect of the child’s care, welfare and development
For example, grandparents’ rights may allow them to spend time with their grandchild overnight, visits during the day, stays on the weekend or time during the school holidays.
If your child and/or their partner is refusing to let you see or speak to your grandchild, you can take steps to try to change the situation. If you require any further information about the rights of grandparents in Family Law matters, please contact us at firstname.lastname@example.org.