Yes, in some cases. Because the Family Law Act looks at the rights of a child as opposed to the rights of any adults that have been a part of a child’s life, it is often in the best interests of the child to maintain a relationship with you as the grandparent. The Family Law Act makes specific provision for the rights of a child to spend time with and communicate with their grandparents regularly if it is in the child’s best interests to do so.
Whether or not a child sees their parent does not depend upon whether that parent is paying child support or not. You should continue to abide by the terms of a Parenting Plan or a Court Order providing for the time between your child and your ex.
If you did not continue to allow your child to spend time with your ex you would be in breach of the parenting arrangements and likely to find yourself having to respond to a Contravention Application in the court. There are options available to you for the collection of unpaid child support and those should be explored by you separately.
Sometimes the circumstances will call for a Contravention Application which means commencing a court proceeding to enforce the terms of the Court Order. In some cases it is possible to get the parenting arrangements back on track without a Contravention Application. In other cases the circumstances are better suited to revisiting the terms of the Court Order through Family Dispute Resolution. Call one of our family law solicitors to discuss your particular situation and work out which is the best way forward for you.
If there is a risk to the children if they were to spend unsupervised time with their parent/s then it is possible to obtain a Court Order which only permits visits to occur on a supervised basis. The risks to the children can be emotional or physical.
If you have a Court Order it is likely that you will be able to file an Application in the court seeking a Recovery Order.
If you have a Parenting Plan then an Application to the court can be made seeking for an Order to be made in your favour.
Exactly what action is taken depends on your particular situation. For example if there is a risk to the safety of the children urgent action is required. In some cases it might be possible to negotiate the return of the children without the need to commence any court proceeding.
The Family Law Act looks at this question not in terms of what a parent’s rights are but rather at what the rights of your children are. As a starting point the Family Law Act sets out that a child has a right to know and spend time with his/her parents unless there is a risk to the child in doing so.
A Consent Order is a Court Order which has been made when you have been able to agree on arrangements concerning your children (or property settlement). The arrangements agreed to are recorded in writing in a document approved by the Court. Once that document is completed by the parties it is sent to the Court for approval. A Consent Order is enforceable. Usually you do not need to attend Court to have a Consent Order made (unless the Consent Order is made as a result of a proceeding that has already been commenced with the Court).
A Parenting Plan is a written document which records arrangements that have been agreed to for matters concerning children. It is dated and signed by the parties. A Parenting Plan is not enforceable. However if a Parenting Plan is made after a Court Order the Parenting Plan will trump the Court Order.
In terms of family law parental responsibility with respect to a child encompasses all of the duties, powers, responsibilities and authority which parents have under the law. It covers a child’s name, religious beliefs and practices, which school a child attends, health matters etc.
Essentially shared parenting refers to the time that is spent by a child with his/her respective parents. Where circumstances are right and it is in the best interests of a child a court can make an Order providing for the child to spend equal time with each of his/her parents. However when the circumstances are such that it is not in the best interests of the child to spend equal time with each of his/her parents then the court instead will consider whether the child should spend significant and substantial time with one parent.