Grandparents rights in Australia: What you need to know

When a separation occurs, it is not only the relationship a child has with their parents which may be disrupted, but also the relationship a child has with other important people in their lives – including grandparents. 

By Charlotte Monaghan, Practice Leader, Australian Family Lawyers (Sunshine Coast)

Due to the significant role grandparents play in a child’s life, it is important to understand your rights as a grandparent under the Family Law Act.

Whether it’s a divorce, custody issue or estrangement from your own adult child, as a grandparent in a difficult situation, there are ways you can re-establish contact and communication with your grandchildren. Read on to understand the legal aspects surrounding grandparents rights in Australia.

The law on grandparents rights in Australia

The Family Law Act recognises that children have a right to spend time and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development.

Grandparents fall into this category and are specifically referred to in the Act as able to make an application seeking parenting orders in relation to a child. The Act expressly requires the Court to consider the nature of a child’s relationship with their grandparents as part of determining what is in their best interests.

Grandparents may apply to the Court for orders in relation to children in a variety of circumstances, including where:

• A parent is preventing the child from spending time with or communicating with the grandparent
• A parent is unable to care for the child
• The child is at risk of harm in a parent’s care

Depending on the circumstances of the particular case, the Court can order that a child live in the primary care of a grandparent or that the child spend regular time with a grandparent. The law recognises that children have a right to a relationship with their grandparents so long as it is in the best interests of the child to do so. 

Related: Fathers’ rights in Australia

The best interests of the child

When deciding whether it is in the best interests of a child to live with or spend time with a grandparent, there are a number of considerations for the Court. The primary considerations under the Family Law Act in determining a child’s best interests are:

a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and

b) The need to protect the child from physical or psychological harm. 

Additional considerations for the Court to take into account are:

a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;

b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child);

c) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child, or other person (including any grandparent or relative of the child) with whom he or she has been living;

d) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

Court orders

A parenting order is an order made by the Court which sets out the parenting arrangements for a child. While termed ‘parenting’ order, the order can also deal with the time a child spends with grandparents. Parenting orders deal with a variety of issues including:

• Where a child lives
• How much time a child spends with parents, grandparents and other significant people, who makes decisions in relation to a child
• Whether a child can travel interstate or overseas
• Arrangements for special occasions such as birthdays and religious holidays
• Any other aspects of a child’s care, welfare and development 

Once a parenting order is made, it is binding on all parties and there are serious consequences for breaching a parenting order.

Mediation

Any person applying to the Court for orders in relation to a child is required to attend family dispute resolution as a first step.

If mediation is not successful or a party does not attend, a certificate will be issued by the mediator which the parties can then use to apply to the Court. There are special circumstances where parties can apply for an exemption from mediation, such as cases of particular urgency.

In the event the parent and grandparent can reach an agreement at mediation, a parenting order can be made by consent and made administratively which means that neither party needs to attend Court.

The Family Law Act encourages people to participate in mediation and to use the Court process as a matter of last resort. 

Professional advice 

The law recognises the importance of children having a relationship with their grandparents. Before you begin the process of seeking time with a grandchild, you should obtain legal advice about your rights and responsibilities under the Family Law Act.

Every situation is unique and with a single-minded focus on family law, the team at Australian Family Lawyers will apply our resources and depth of knowledge to assist you to achieve your desired outcome. 

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