Key Takeaways:
- No automatic rights: Grandparents do not have automatic legal rights to see their grandchildren but can apply to the court for parenting orders under the Family Law Act 1975 (Cth)
- Children’s best interests are paramount: Courts will only make orders if the arrangement promotes the child’s safety and wellbeing.
- Family dispute resolution (mediation) is usually required before court, unless there are urgent or unsafe circumstances.
- Parenting orders are available: Grandparents can seek orders for time with grandchildren, communication, and in some cases, the children living with them or having decision-making responsibilities.
- Court considers several factors when deciding what is in the child’s best interests: including safety, emotional and developmental needs, and the importance of relationships with grandparents.
- Legal advice is essential: A family lawyer can guide you through your options, help with mediation, and represent your interests in court if necessary.
Grandparents often play a vital and nurturing role in a child’s life, providing love, stability, and support. However, when families experience conflict or separation, it can become difficult for grandparents to maintain a relationship with their grandchildren. If you’re a grandparent who has a significant caring role or has been stopped from seeing their grandchildren, it’s important to understand where the law stands.
Do Grandparents Have Automatic Legal Rights?
In Australia, grandparents do not have automatic legal rights to see their grandchildren. However, the Family Law Act 1975 (Cth) recognises the important role grandparents can play and gives them the legal ability to apply for court orders concerning their grandchildren.
What Does the Law Say?
Under the Family Law Act, a Court can make Orders for parenting arrangements —including with grandparents—provided this is in the child’s best interests and ensures the child’s safety.
Grandparents can apply for parenting orders, which may include:
- Time with the grandchildren
- Communication arrangements (calls, video chats, etc.)
- In some cases, living with the grandchildren or the capacity to make long term decisions for the children.
What Are Parenting Orders?
Parenting orders can be made by agreement (called consent orders) or by court decision if an agreement can’t be reached. As a grandparent, you can apply for parenting orders even if the child’s parents are not separated or divorced, but you will need to demonstrate that it’s in the child’s best interests to maintain that relationship and it’s essential you obtain legal advice before embarking on this course of action.
What Does “Best Interests of the Child” Mean?
The court always prioritises the child’s best interests. Some key factors include:
- What arrangements are going to promote the safety of the child and their care givers?
- Have any views been expressed by the child? If so, what is the age and maturity of the child?
- Does the child have any additional developmental, psychological, emotional or cultural needs that should be considered?
- What is the capacity of the people caring for the children, particularly their parents?
- What is the benefit to the child of having a meaningful relationship with grandparents
Can Grandparents Get Custody of Grandchildren?
The Family Law Act does not talk about Custody. It talks about who children will live with, who they will spend time with and who will make decisions about their long-term welfare. In some situations, these Orders may be made in favour of grandparents, normally in circumstances where the parents are unable to care for the children due to death, illness, family violence, drug or alcohol misuse, mental health issues, or other serious concerns.
Do I Need to Go to Court?
Not necessarily. In most cases, family dispute resolution (mediation) is the first step. You may be required to attempt mediation before filing an application in court, unless there are urgent circumstances (such as risk of harm to the child). Mediation is also an excellent opportunity for all parties to try and work things out amongst themselves before handing decision making over to a judicial officer.
If an agreement can be reached at mediation, you can apply for a consent order, which is legally binding. You may alternatively opt to document your agreement in a Parenting Plan.
If mediation is unsuccessful or inappropriate (e.g. due to safety concerns), you may apply directly to the Federal Circuit and Family Court of Australia (FCFCOA) for parenting orders.
How Can a Family Lawyer Help?
Navigating the legal process can be complex and emotionally challenging. A family lawyer can help you:
- Understand your rights and legal options
- Prepare for mediation
- Draft consent orders or court applications
- Advocate for your role in your grandchildren’s lives
The team at Berryman Partners have years of experience helping people with their family law needs throughout the Newcastle, Lake Macquarie and Hunter region. If you’re a grandparent looking to understand your rights, Contact Us on (02) 4943 3988 to speak with one of our expert family lawyers. We will help you through each step of the process.
This blog was written by Senior Associate,
Liz McIntyre
Liz practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates, Wills disputes and Conveyancing
